Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 544 of 2021 Appellant :- Dr. Deena Nath Pandey Respondent :- State Of U.P. And 3 Others Counsel for Appellant :- Vivek Kumar Singh,Shiva Prakash Counsel for Respondent :- C.S.C.
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Subhash Chandra Sharma,J.
By this appeal, a challenge is made to the judgment dated 23.05.2016 passed by learned Single Judge whereby writ petition preferred by the petitioner was disposed of with appropriate direction. An application for modification of the order was filed and decided by the order dated 05.02.2021. In view of the fact aforesaid, we find justification of delay in filing the appeal and, accordingly, the application for condonation of delay in filing the appeal is allowed.
The controversy involved in this appeal is regarding entitlement of the salary to the petitioner till 30.06.2013. It is alleged that the petitioner-appellant was appointed as Principal of the Institution but vide order dated 24.03.2011, he was restrained to work. One Algoo Ram was allowed to officiate as Principal who thereafter retired on 30.06.2013. The petitioner was then allowed to discharge the function of the post of Principal and paid salary. The claim made in the writ petition was only in regard to salary between a period of almost 25 months falling between March, 2011 and June, 2013. The claim has been made based on the assertion that the petitioner-appellant actually worked as Principal of the Institution during the intervening period yet has not paid salary.
Learned counsel for the appellant was asked to show material about actual working of the appellant during the intervening period aforesaid. It is in the light of the fact that according to learned Single Judge, the appellant did not work till 30.06.2013. Learned counsel for the appellant has invited attention of this Court to para 22 of the writ petition but we find that in para 23 of the writ petition, a request was made to allow the petitioner-appellant to work as Principal of the Institution after 30.06.2013. Para 23 of the writ petition is quoted hereunder for ready reference :
"23. That, however, the petitioner approached the District Inspector of Schools, Chandauli after retirement of Algoo Ram dated 30.06.2013 to permit the petitioner to function as Principal of the institution and further to ensure the payment of salary to the petitioner as and when it be will done. A xerox copy of the representation dated 16.07.2013 filed by petitioner is annexed herewith and marked as Annexure no.8 to this writ petition."
The averment given in para 23 shows nothing but admission of the petitioner making a request to allow him to work as Principal on the retirement of Algoo Ram on 30.06.2013. It shows that the petitioner was not working as Principal till then so as to claim his salary for the intervening period.
Taking aforesaid into consideration, we do not find claim of salary of the intervening period from March, 2011 till June, 2013 is sustainable. It is not in dispute that the petitioner-appellant has been allowed salary subsequent to joining the post of Principal in the year 2013 and he has attained the age of superannuation.
In view of the above, we do not find any ground to cause interference in the judgment of learned Single Judge when a factual foundation could not be laid by the petitioner-appellant to claim salary of the intervening period.
Accordingly, the appeal fails and is dismissed.
Order Date :- 29.7.2021 Shubham .
(Subhash Chandra Sharma, J.) (Munishwar Nath Bhandari, A.C.J.)