Om Prakash Kushresth & Anr v. State of U.P. & Ors.). It was disposed of by order dated
Case Details
Court No. - 36 Case :- WRIT - A No. - 20804 of 2022 Petitioner :- C/M Inter College And Another Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Man Bahadur Singh,Rajeev Kumar Counsel for Respondent :- C.S.C.,Yogendra Kumar Srivastava Hon'ble Saumitra Dayal Singh,J. 1. Heard Sri Man Bahadur Singh, learned counsel for the petitioner - Committee of Management; Sri Yogendra Kumar Srivastava, learned counsel for the private respondent and learned Standing Counsel for the State-respondents. 2. Present writ petition has been filed by the Committee of Management - D.A.V. Inter College, Sakeet, Etah through its Manager to assail the order dated 07.11.2022 passed by the DIOS, Etah, providing for recovery from the Committee of Management to pay to respondent no.6/Dayanidhi Rs.
Legal Reasoning
3,55,020/- and Rs. 4,65,170/- to another retired teacher (Sri Om Prakash) at that institution. 3. Learned counsel for the petitioner submits, respondent no.6 was to retire at the age of 58 years. There existed an option with respondent no.6 to seek extension of retirement age upto the age of 62 years, subject to exercise of that option by 01.07.2002. The respondent no.6 did not exercise that option within time. Therefore, the request made by those persons to the Committee of Management on 04.07.2002, was not entertained. 4. In that circumstance, respondent no.6 appears to have approached the DIOS, Etah, who granted the extension for retirement age, as prayed for, by order 02.05.2003 to respondent no.6. The Committee Management approached the Deputy Director of Secondary Education. It is claimed vide his order dated 27.05.2003, the said Deputy Director of Education stayed the operation and effect of the order dated 02.05.2003 passed by the DIOS Etah. Later, vide order dated 22.09.2003, the proceedings were remanded to the DIOS, Etah. 5. Against that order, the respondent No. 6 and similarly situated persons approached this Court by means of Civil Misc. Writ Petition No. 47842 of 2003 (Om Prakash Kushresth &
Decision
Anr. Vs. State of U.P. & Ors.). It was disposed of by order dated 12.10.2004, on the following terms : "As the said order dated 02.05.2003 and subsequent order has neither been challenged nor set aside till date and same still holds good, as such respondent no.4 Committee of Management is under an obligation to permit the petitioners to discharge their duties as Assistant Teachers till the date, they attain the age of superannuation in term of the Regulations framed under U.P. Intermediate Education Act, 1921. Thus, petitioners are entitled to function in the institution till 30.06.2005 as Assistant Teachers. In case, age of superannuation is extended upto 62 years then they are entitled to function upto 30.06.2007 and receive their salary also. For the reasons stated above, present writ petition is disposed of." 6. The special appeal filed against that order (by the petitioner - Committee of Management) was dismissed. In such fact background, it is the admitted case of the petitioner - Committee of Management that respondent no. 6 joined the petitioner institution on 12.10.2004. He worked continuously till 30.06.2007. 7. At that stage, a representation appears to have been filed by respondent no. 6 and other similarly situated persons with respect to payment of salary. That representation was dealt with and decided by the Joint Director Secondary Education, vide his order dated 14.06.2007. The same was decided on the following terms : " ययचचगण कक पतययवकदन ददनयनक 02.03.2005 कय सवचकयर करतक हहए यह दनणरय ददयय जयतय हह दक वक मयननचय उचच नययययलय कक आदकश ददनयनक 12.10.2004 कक अननपयलन मम अधधवररतय आयन पपणर हहनक तक अरयरत 30.06.2007 तक कययररत रहमगक, और पपणर वकतन पयप करनक कक अधधकयरच हहगक। मय० उचच नययययलय कक आदकश ददनयनक 01.11.2004 कक अननपयलन मम धजलय दवदयलय दनरचकक, एटय कक आदकश ददनयनक 02.05.03 कक आधयर पर उनकक सकवयओन कह दनरनतर मयनय जययकगय। इसमम कहई वयवधयन नहह हहगय।" 8. Against that order, the petitioner - Committee of Management filed Writ - A No. 32072 of 2007. It was dismissed by order dated 19.07.2012. That order has attained finality. In such fact background, learned counsel for the petitioner would submit, there existed bona fide dispute between the parties. It prevented the petitioner - Committee of Management from raising salary bills of respondent no. 6 and Sri Om Prakash till decision in Writ - A No. 32072 of 2007. Upon dismissal of that writ petition, the petitioner - Committee of Management duly submitted salary bills of respondent no. 6 and the said Om Prakash, in the year 2013. Therefore, there is no error on part of the petitioner - Committee of Management. The State Exchequer and its authorities have caused the delay in making payments to respondent no. 6 and the said Om Prakash. Therefore, no recoveries can be made from the petitioner - Committee of Management. In any case, the impugned direction is stated to be ex parte. Therefore, the same is not sustainable. 9. On the other hand, learned counsel for the private respondent would contend, even after dismissal of Writ - A No. 32072 of 2007, no payment of salary has been made to respondent no. 6. Only upon respondent No. 6 approaching this Court by means of Writ - A No. 12956 of 2021 wherein the Court has directed the learned Standing Counsel to obtain instructions with respect to salary payment of respondent No. 6 the impugned direction came to be issued by the DIOS, Etah to recover the amount of defaulted salary from the petitioner. According to him, in absence any factual dispute, the impugned order does not suffer from any patent legal error as may warrant any interference by this Court. 10. Learned Standing Counsel has opposed the writ petition and submitted that default having been committed by the petitioner - Committee of Management it has exposed itself to recovery under Section 10(2) of the U.P. Act No. 24 of 1971. 11. Having heard learned counsel for the parties and having perused the record, though it is true, the parties were in dispute, at the same time, it has to be tested if the explanation offered by the Committee of Management is bona fide. Here, it may be noted, the first obligation was on the Committee of Management to take work from respondent no. 6, upon order dated 02.05.2003 passed by the DIOS, Etah. That order is claimed to have remained stayed from 27.05.2003 upto 12.10.2004. 12. However, upon the earlier Civil Misc. Writ Petition No. 47842 of 2003 filed by respondent no. 6 and others having been allowed with specific direction that the said respondents were entitled to function in the institution till 30.06.2005/30.06.2007, the restrain that may have been earlier placed (under the order of the Deputy Director of Secondary Education), came to an end. No other order is even claimed in its favour by the Committee of Management as may allow it to raise a plea of legal impediment in payment of due salary to the respondent no. 6 and the said Om Prakash. 13. The default on part of the Committee of Management becomes plain from its own admission that consequent to the order dated 12.10.2004 passed by this Court, the Committee of Management allowed respondent no. 6 and the said Om Prakash to join services in the year 2004 itself. Having made part compliance of the order passed by this court and having taken work from respondent no. 6 and other similarly situated persons, it never became open to the Committee of Management to set up a plea that there was any legal impediment in allowing for due salary to such persons. 14. Then, as to the liability to pay the due salary to respondent no. 6 and other similarly situated persons no dispute existed beyond the order dated 14.06.2007 passed by the Joint Director of Secondary Education. It clearly provided full payment of salary from 02.05.2003 onwards. That order was never stayed in any proceeding. Still, the petitioner waited for dismissal of Writ - A No. 32072 of 2007 decided on 19.07.2012 to first submit the salary bills of respondent no. 6 and other similarly situated persons in the year 2013. 15. Section 10(2) of the Act No. 24 of 1971 reads as below : "10. Liability in respect of salary. -- (1) ... (2) The State Government may recover any amount in respect of which any liability is incurred by it under sub-section (1) by attachment of the income from the property belonging to or vested in the institution as if that amount were an arrear of land revenue due from the institution." 16. In view of the facts noted above and conduct offered by the Committee of Management over a long period of almost 20 years wherein the respondent has been deprived of salary due to him for a period of 4 years, no case is made out to offer any interference in the present writ petition. The State authorities are found to have been not obligated to issue any prior show- cause-notice in such admitted facts of the case. 17. Accordingly, the present writ petition is dismissed. However, subject to the disputed amount being paid within two weeks, it is left open to the petitioner Committee of Management to raise objection before the authorities. That objection, if raised, after making due compliance of this order, may be dealt with and decided on its own merit, as expeditiously as possible, preferably within a period of two months from the date of it being filed. In any event, the amount deposited by the petitioner may be paid out to those entitled in law. Order Date :- 14.12.2022 Abhilash Digitally signed by ABHILASH SINGH Date: 2022.12.14 17:23:58 IST Reason: Location: High Court of Judicature at Allahabad