Court No. - 36
Case :- WRIT - A No. - 17331 of 2021 Petitioner :- Avneet Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Avanish Tripathi,Dheeraj Kumar Yadav Counsel for Respondent :- C.S.C.,Pranesh Dutt Tripathi
Hon'ble Saral Srivastava,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondents no.1, 2 & 4 and Sri P.D. Tripathi, learned counsel for the respondent no.3.
The petitioner by means of present writ petition has assailed the order dated 04.08.2021 passed by the respondent no.3-District Basic Education Officer, Bareilly. The petitioner is Assistant Teacher in Primary School, Viriya Narayanpur Vayara, Block Kyara, District Bareilly.
It appears that the petitioner had been assigned duty of Booth Level Officer (in short 'BLO') which he could not do for some personal reasons. The respondent no.4- Additional City Magistrate, Sadar, District Bareilly by order dated 23.07.2021 directed the District Basic Education Officer, Bareilly to stop the salary of the petitioner as the petitioner had not started discharging the duties of BLO.
Challenging the aforesaid order, learned counsel for the petitioner has contended that in view of settled proposition of law, the petitioner cannot be assigned the duties of BLO. It is further contended that the respondent no.4- Additional City Magistrate, Sadar, District Bareilly has no jurisdiction to stop the salary of the petitioner and as such, the order impugned which has been passed on the dictate of respondent no.4-Additional City Magistrate, Sadar, District Bareilly is not sustainable.
Learned counsel for the petitioner has placed reliance upon a judgement of this Court passed in Writ-A No.11824 of 2021 (Kuldip Singh Vs. State of U.P. and 2 others), which is reproduced herein-below:-
"The instructions are also similar to the order passed and impugned in the present writ petition. The instructions are taken on record.
The present writ petition has been filed challenging the order dated 26.8.2021 whereby the salary of the petitioner has been stopped on the allegation that the petitioner was negligent and performing his duties as fourth level officer.
Counsel for the petitioner argues that firstly, the SDM had no jurisdiction and the Basic Shiksha Adhikari had jurisdiction in regard to the discrepancy pertaining to the petitioner. Secondly, he argues that the allegations even if accepted to be correct is contrary to the judgment of this Court dated 25.3.2015 passed in PIL No. 11208 of 2015 (Sunita Sharma Vs. State of UP and others).
The counsel for the petitioners argues that the said order is bad on more than one count, firstly, the respondent has no authority under law to stop the salary even if the allegations are accepted to be correct and, secondly, this Court, in the case of Sunita Sharma vs. State of U.P. and others, 2015 (3) ESC 1289 (All.) (DB) had taken a decision that the petitioner being forced to carry out the duties of BLO is without any authority of law. The decision of this Court in the case of Sunita Sharma (supra) is very clear that the teachers similar to the petitioner cannot be forced to carry out the duties of BLO.
In view of the said judgement coupled with the fact that the respondent has no authority to withhold the salary as has been done by means of the impugned order dated 26.8.2021 (Annexure 2 to the writ petition) the same is set aside insofar as it relates to the petitioner with directions that the petitioner shall be permitted to continue to work and shall be paid salary to which he is entitled under law.
The petition is disposed off in terms of the said direction.
Copy of the order downloaded from the website of Allahabad High Court shall be accepted/treated as certified copy of the order."
Perusal of the aforesaid judgement discloses that the controversy in hand is almost identical with the facts of Writ-A No.11824 of 2021.
Though, learned counsel for the respondents has tried to demonstrate that the judgement of this Court in Writ-A No.11824 of 2021 is not applicable but this Court is not inclined to accept such submission as this Court in Writ-A No.11824 of 2021 has recorded categorically that SDM has no jurisdiction to pass any order for stopping salary and secondly, the petitioner cannot be forced to carry out duties of BLO without authority of law.
In view of the aforesaid fact, the controversy in hand is covered by the judgement of this Court in Writ-A No.11824 of 2021, therefore, the present writ petition is also allowed in terms of judgement of this Court in Writ-A No.11824 of 2021.
The order impugned dated 04.08.2021 passed by the respondent no.3-District Basic Education Officer, Bareilly is quashed so far as the petitioner is concerned with a direction to the respondents to pay salary to the petitioner which he is entitled.
With the observations made above, the writ petition is allowed.
Order Date :- 17.12.2021 SS