Court No. - 58
Case :- WRIT - A No. - 11490 of 2018 Petitioner :- Urmila Singh Respondent :- State Of U. P. And 5 Others Counsel for Petitioner :- Ali Hasan,Sr. Advocate Sri Radha Kant Ojha Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. Following orders were passed in the matter on 16.5.2018:-
“Deputy Director of Education (Secondary), Fifth Division, Varanasi has passed two orders on the same day in the case of the petitioner on 27th March, 2018. By one order, he has correctly fixed the pension according to petitioner, while vide different order passed on the same date, the same authority finds that a higher amount had been paid, which needs to be adjusted first. There is no explanation as to how in the same date, same officer passes two orders, which are at variance with each other.
While entertaining the writ petition, following orders were passed on 9.5.2018:-
"Grievance of the petitioner is that her pension was correctly fixed by an order dated 27.3.2018 while the Deputy Director of Education by an order of the same date has directed that the excess amount paid to the petitioner be adjusted first. Submission is that for malafide and extraneous reasons, respondents are harassing a retired person.
Learned Standing Counsel may obtain instructions from respondent no.2, specifically with reference to what exactly is the amount paid in excess to petitioner, which is to be adjusted. The officer shall also disclose as to how on the same date,by one order the pension is being sanctioned while by another order, objections are being raised.
Post as fresh on 16.5.2018."
Instructions have been produced from the officer concerned, but there is no explanation as to how on same date, two different orders were passed. In case excess payment was on record, the sanction ought to have been made conditional. In case the excess payment order was not record, how it suddenly surfaced on the same date. The allegation made by the petitioner that extraneous reasons have prevailed in passing of the order, requires scrutiny.
Let the Secretary of the concerned department of State examine this aspect of the matter and file an affidavit by the next date fixed.
Post as fresh on 28.5.2018”.
2. An affidavit in terms of the aforesaid order has been filed before this Court by Deputy Director of Education, Varanasi Region, Varanasi, according to which petitioner since was appointed as CT grade teacher on 1.7.1981, therefore, she could be granted benefit of LT grade only upon completion of 10 years service in the year 1991, whereas benefit of LT grade has been granted to the petitioner w.e.f. 31.7.1989. According to the respondents there was anomaly and therefore the difference of amount paid towards salary for the L.T. Grade post was wrongly paid and has to be adjusted. All subsequent fixation of pay have also been disputed on such count. It is stated that this was the reason as to why the authorities have directed recovery to be made from the petitioner.
3. The objection of the respondents apparently is misconceived. The petitioner was although appointed in CT grade in the year 1981 in a school which was a Junior High School but the institution, later, was upgraded to High School level after recognition was granted to it under Section 7(4) of the Act of 1921 w.e.f. 31.3.1986 vide order dated 11.3.1986. The post of L.T. Grade teacher was created in the institution on 5.12.1986.
4. Sri R.K.Ojha learned Senior counsel, assisted by Sri Ali Hasan, learned counsel for the petitioner points out that by virtue of Regulations 4 & 5 of Chapter-II of the Regulations framed under the Act of 1921, the 50% posts duly created in upgraded institution were required to be filled by way of promotion from senior most L.T. Grade teacher to lecturer's grade and from the senior most C.T. Grade teacher to L.T. Grade. Regulations 4 & 5 of the Regulations are reproduced herewith:-
“4. Where any Junior High School is recognised as a High School under Section 7, a permanent and temporary teacher of such school, possessing the minimum qualifications under Regulation 1, shall be deemed to be permanent or temporary teacher, as the case may be ,of such High School, provided that the services of a temporary teacher who is not selected for appointment in accordance with the provision of the Act and the regulations shall be dispensed with after giving him one month's notice in that behalf or one month's pay in lieu of such notice.
Explanation- Nothing in this regulation shall be construed to mean that High School includes Classes 1 to 5.
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5. It is pointed out that against 50% posts created in L.T. Grade, to be filled by promotion, the claim of petitioner was considered and she was actually promoted vide order dated 31.7.1989. There is a specific approval granted by D.I.O.S. concerned to petitioner's promotion to L.T. Grade on 31.7.1989. All consequential benefits have been granted to the petitioner, treating her promotion to L.T. Grade w.e.f. 31.7.1989. In such circumstances, the Government Orders which provides for grant of L.T. Grade upon completion of 10 years service, had no applicability in the facts of the present case as the petitioner's promotion was against specific provisions, contained in the regulation which had also been approved. It appears that since no opportunity of hearing was given to the petitioner as such, these aspects could not be highlighted and have completely been omitted from consideration. The authorities although have filed counter affidavit but these aspects have not been dealt with.
6. In view of what has been stated above, this Court finds that the authorities were not justified in assuming promotion of petitioner w.e.f. 31.7.1989 to be wrong and thereafter directing recovery to be initiated against the petitioner. The impugned order is found to be based on complete non application of mind and is otherwise in violation of the principles of natural justice.
7. Writ petition accordingly succeeds and is allowed. Order dated 27.3.2018 passed by the Deputy Director of Education in so far as it directs the alleged excess amount to be adjusted from petitioner's salary, is quashed. The concerned authority shall process the claim of the petitioner, keeping in view the observations made above, within a period of two months from the date of presentation of certified copy of this order. The amount which is found due and payable to the petitioner shall be released within a further period of two months thereafter.
Order Date :- 28.5.2018 n.u.