Court No. - 36
Case :- WRIT - A No. - 1767 of 2021 Petitioner :- Smt. Manju Srivastava Respondent :- State of U.P. and 5 others Counsel for Petitioner :- Vinay Kumar Srivastava, Abhishek Srivastava,Tanu Roopanwal Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Vinay Kumar Srivastava, learned counsel for the petitioner and learned Standing Counsel for the State- respondents.
The petitioner is before this Court with following main prayers:-
"i. Issue a suitable order or direction to set aside the impugned order dated 9.10.2020 and 22.10.2020 as are perverse order, passed by the respondent Deputy Director of Education (Secondary) Up Shiksha Nideshak (Madhyamik) Pancham Mandal, Varanasi (annexure-9 & 10).
ii. Issue a suitable order or direction commanding the respondents to make the payment of pension months to months as and when due to the petitioner as retire from the post of Assistant Teacher on completion, age of superannuation on 31.3.2018.
iii. Issue suitable order direction in the nature of mandamus commanding the respondents to make the payment of arrear of pension since October 2020 with interest to the petitioner."
It appears from the record that the petitioner was appointed as Assistant Teacher on 06.7.1990 in Kamlapati Tripathi Adarsh Vidyalaya (Shishu Vibhag) Shastri Nagar, Varanasi on compassionate ground. The Committee of Management of the institution has approached this Court by preferring Writ Petition No.30752 of 1992 (the Committee of Management of Kamlapati Tripathi Adarsh Vidyalaya (Shishu Vibhag) Shastri Nagar, Varanasi vs. the District Inspector of Schools, Varanasi and others) wherein an interim order was accorded in favour of the petitioners on 02.09.1992. Subsequently, by the order dated 10.2.1993 passed by this Court, the interim order dated 02.09.1992 was modified and the respondents were directed to pay salary to the teachers of the Primary Section of the institution in question in accordance with the Government order dated 06.9.1980.
Smt. Sunita Srivastava and 13 others, who were working as Assistant Teacher in Kamlapati Tripathi Adarsh Vidyalaya (Shishu Vibhag) Shastri Nagar, Varanasi have also approached this Court by preferring Writ Petition No.39597 of 1992 in which, the petitioner was placed at serial No. 11 as petitioners. Finally, the writ petition was disposed of by the order dated 27.3.2008 with following orders:-
"In this writ petition the teachers of the junior section of the institution in question had sought payment of salary under U.P. Act No. 24 of 1971.
Learned Standing Counsel has produced a letter dated 6th May 2003 in which it has been informed that the primary section has been taken over under the grant in aid list and the teachers of the primary section i.e. the petitioners are being paid their salary through the State Exchequer with effect from 6.9.1989. Therefore, the relief sought by petitioners in this case has been granted to them by the State and no cause of action survives.
It goes without saying that since the institution has been taken in the grant in aid list from 6.9.1989, the petitioners will be given the benefit of the order dated 6.9.1989 from that date.
The writ petition is disposed of."
The aforesaid order was subjected to challenge in Special Appeal Defective No. 29 of 2009 (State of U.P. through Secy. Secondary Education and another Vs. Smt. Sunita Srivastava and others) and a Division Bench of this Court had proceeded to dispose of the aforesaid appeal on 14.3.20216 in terms of the judgement passed by the Apex Court in State of U.P. and others Vs. Pawan Kumar Divedi and others (JT 2014 (10) SC-190). The petitioner has been paid salary as Assistant Teacher and has retired on 31.3.2018 after attaining the age of superannuation.
A counter affidavit dated 24.3.2021 sworn by Shri Shiv Poojan Dwivedi, Associate District Inspector of Schools, Varanasi has been filed by learned Standing Counsel on behalf of respondent nos.1 to 5 stating therein that the appointment of the petitioner was made against the law by the Committee of Management of the institution. It would be apt to refer the paragraph Nos. 5, 6 and 7 of the counter affidavit, which read as under:-
"5. That attached primary section of the institution in pursuance of Govt. Order dated 6.9.1989 has been covered from the limit of Salary Distribution Act, 1971. In the writ petition in question the petitioner has shown herself appointed on 6.7.1990 as dependent of deceased in attached primary section of the institution which is not liable to be admitted. The petitioner has been appointed irregular and against the law by the committee of management of the institution and in compliance of interim order dated 10.2.1993 passed by this Hon'ble Court in Writ Petition No. 30752/1992, according to the directions of Govt. Order dated 6.5.2003 the salary of the petitioner is paying from the month of Sept. 2003 and considering the retirement date of the petitioner dated 31.3.2018, Deputy Director of Education (Secondary) Pancham Mandal, Varanasi issued the order dated 17.3.2018 in respect of payment of retiral dues and pension. In compliance of order dated 24.3.2016 passed by this Hon'ble Court in Special Appeal No. 29/2009 filed by the department, by the Govt. Order dated 27.11.2018 for the payment of arrear of the salary of working teacher in attached primary section the decision has been taken with certain condition. In compliance of order dated 24.3.2016 passed by this Hon'ble Court in Special Appeal No. 29/2009 filed by the department, by the Government Order dated 27.11.2018 for the payment of arrear of the salary of working teacher in attached primary section the decision has been taken with certain condition which are as under:-
"1. धनरराशशि करा भभुगतरान उन यराचची शशिक्षककों कको शकयरा जराय जको यराशचकरा दरायर करतत समय अपनत पद हततभु शनधरार्धाररत अहर्धातरा रखतत हको और जजनककी शनयशभु क्ति शनयमरानभुसरार हहई हकों तथरा शविजधवित ढढंग सत सक्षम अजधकरारची कत स्तर सत अनभुमकोशदत हकों। 2. यराचचीगणकों ककी अहर्धातरायय , शनयशभु क्ति एविढं अनभुमकोदन ककी सत्यतरा करा परचीक्षचीण जजलरा शविदरालय शनरचीक्षक, विरारराणसची दराररा शकयरा जरायतगरा एविढं वित इसकत जलए शविजधवितरूप सत उत्तरदरायची हकोगय।"
6. That in compliance of the Govt. Order dated 27.11.2018, in respect of the appointment of the petitioner the requisite procedure such as Advertisement, academic qualification, appointment letter and the joining letter related record, the Manager/Principal of the Institution neither produced requisite documents before the District Inspector of Schools, Varanasi nor by the petitioner. The Directorate of Education, U.P. Prayagraj appointed 3 members enquiry committee in this matter. First member of enquiry committee Smt. Anjana Goel, Additional Director (Govt.) U.P. Prayagraj and the second member, Sri Ajay Kumar Dwivedi, Joint Director of Education, Varanasi Region, Varanasi and the third member, Sri Atmadhar Prakash Dwivedi, Finance and Account Officer, Directorate of Education, U.P. Prayagraj.
7. That three members enquiry committee submitted his enquiry report on 24.10.2019. In this enquiry report it is stated that regarding advertisement, academic qualification, appointment letter and the joining letter no records were found, therefore, it is impossible to decide the procedure of the appointment of the petitioner it seems that proper procedure were not adopted in the selection of the teachers in attached primary section of the institution."
In this backdrop, learned counsel for the petitioner has vehemently contended that the orders impugned are unsustainable under the facts and circumstances of the case. Admittedly, the petitioner was appointed on compassionate ground in place of her deceased husband on 06.7.1990 and was paid regular salary through State Exchequer. Initially the interim order was accorded on 02.9.1992 in writ petition No.30752 of 1992 and the said order was modified on 10.2.1993 to the extent that the teachers of the Primary Section of the institution in question would be paid salary in accordance with the Government order dated 06.9.1980. In compliance of the aforesaid interim order, the petitioner was paid salary. Finally the Writ Petition No.39597 of 1992 preferred by 14 teachers of the institution including the petitioner at serial no.11 was disposed of by this Court on 27.3.2008 on the basis of letter dated 6th May 2003 in which it was informed that the primary section of the institution has been taken over under the grand- in-aid list and the teachers of Primary Section are being paid their salary through the State Exchequer with effect from 06.9.1999. While passing the final order, the Court had taken cognizance of the letter dated 6th May 2003 and only in this backdrop, the writ petition was disposed of by this Court on 27.3.2008 with the observation that since the institution has been taken in grant-in-aid list from 06.9.1989 the petitioners would be given the benefit of the order dated 6.9.1989 from that date. Even though, against the said order the Special Appeal No.29 of 2009 was preferred by the State of U.P. and the same was disposed of on 14.3.2016 in terms of the decision in Pawan Kumar Divedi case (supra). It is submitted that at this stage, the respondents cannot take plea that in absence of requisite documents, her initial engagement/appointment is doubtful.
Per contra, learned Standing Counsel has vehemently opposed the writ petition and submits that once the respondents have proceeded to decide the claim of the petitioner in the light of the order dated 14.3.2016 passed by the Division Bench in Special Appeal Defective No.29 of 2009 then no relief can be accorded in favour of the petitioner and the writ petition is liable to be dismissed.
Heard rival submissions of learned counsel for the parties and perused the record.
This much is reflected from the record that the petitioner alongwith other similarly situated teachers/staff of the institution in question had preferred writ petition No.39597 of 1992, wherein, the petitioner was placed at serial No. 11 as per the memo of the parties, wherein, the State had itself taken a decision on 6th May 2003 that the primary section of the institution in question has been taken over under the grant-in- aid list and the teachers of the primary section i.e. the petitioners were paid their salary from the State Exchequer with effect from 06.9.1989. On the aforesaid letter, the writ petition was disposed of on 27.3.2008 with observation that since the institution has been taken in the grand in aid list from 06.9.1989, the petitioners would be given the benefit of the order-dated 06.9.1989 from that date. While passing the impugned order, a plea has been taken that as per the Government Order dated 27.11.2018, no requisite documents regarding appointment of the teachers were available with the concerned institution and as such, their initial engagement/appointment are doubtful. Even though, while disposing the aforesaid Special Appeal Defective No. 29/2009, learned counsel for the parties were in agreement that the matter involved in the said Special Appeal was squarely covered by the decision of the Apex Court rendered in the case of Pawan Kumar Divedi's case (supra) and accordingly, the Special Appeal was also disposed of on 14.3.2016 in terms of the decision in Pawan Kumar Divedi's case (supra).
Admittedly, the primary section of the institution in question was brought on grant-in-aid list and salary to the teachers were ensured with effect from 06.9.1989. The committee of management had also preferred writ petition for payment of salary. Once the writ petition no. 39597 of 1992 preferred by the teachers/staff of the institution was disposed of by this Court on 27.3.2008 on the basis of letter dated 6th May 2003, therefore, at this stage, the objection as indicated above was not available to the respondents to make an observation that the petitioner's initial engagement was irregular or dehors the rules.
In view of peculiar facts and circumstances of the case, as indicated above, the petitioner had been paid regular salary through State Exchequer w.e.f. 06.7.1990 and she has finally retired in the year 2018. Therefore, at this stage, the respondents cannot take an objection regarding her initial engagement in the institution in question and inspite of the successive litigations at no point of time, the said objection had ever been raised by the respondents. Contrarily, the letter dated 6th May 2003 was placed in the earlier writ petition and only on the basis of said letter, the writ petition was disposed of by the judgement and order dated 27.3.2008.
In the aforesaid facts and circumstances, the impugned orders dated 9.10.2020 and 22.10.2020 passed by the Deputy Director of Education (Secondary) Up Shiksha Nideshak (Madhyamik) Pancham Mandal, Varanasi cannot sustain and the same are set aside.
At this stage, this Court is not inclined to relegate the petitioner to the competent authority as the petitioner has already been superannuated on 31.3.2018.
Consequently, the writ petition is allowed and accordingly, a writ of mandamus is issued to the respondents to ensure all consequential benefits to the petitioner, which have been withheld by means of orders impugned. The entire retiral benefits shall be granted to the petitioner within a period of two months from the date of production of a copy of this order, failing which the petitioner shall be entitled to 6% interest on the delayed payment.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 19.8.2021 Jaswant