Allahabad High Court
State Of U.P. Thru Prin.Secy. ... vs Ashok Kumar Mishra & Anr. ( S/S 6878/2006 ... on 5 August, 2019
Bench: Ajai Lamba, Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 2 Case :- SPECIAL APPEAL No. - 213 of 2007 Appellant :- State Of U.P. Thru Prin.Secy. Sec.Education & 2 Ors. Respondent :- Ashok Kumar Mishra & Anr. ( S/S 6878/2006 ) Counsel for Appellant :- Standing Counsel Counsel for Respondent :- Vivek Kumar Shukla Hon'ble Ajai Lamba,J.
Hon'ble Manish Mathur,J.
(ORAL)
1. State of U.P. through Principal Secretary to Government of U.P. Secondary Education and two other State functionaries have preferred this Special Appeal against order dated 22.8.2006 passed at interim stage of hearing of writ petition No. 6878 (S/S) of 2006 titled Ashok Kumar Mishra versus State of U.P. and others.
2. Sri Nishant Shukla Advocate has appeared for respondent No.1. His power of attorney is taken on record.
Sri Sanjai Srivastav Advocate has appeared for respondent No.2. His power of attorney is taken on record.
3. Vide the impugned order, the appellant-writ respondent were directed to pay regular salary to the respondent-writ petitioner with effect from 27.10.2003.
4. Order dated 22.8.2006 impugned by virtue of this appeal reads as under:-
"Heard learned counsel for the parties who have put in appearance before the Court.
Issue notice to opposite party no.4.
Let a counter affidavit be filed within six weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List in the month of October, 2006.
The petitioner has been working on a teaching post in the institution indicated in the writ petition for a substantial period of time. He has been discharging duties, functions and responsibilities of the post held by him. The employer-employee relations are continuing.
Accordingly, the opposite parties are directed to pay regular monthly salary to the petitioner with effect from 27.10.2003 and continue to pay the same every month."
5. We have heard learned counsel for the parties and have gone through the pleadings, and contents of the impugned order.
Learned counsel for respondent No.1, Sri Nishant Shukla has very fairly pointed out that there is no cause to adjudicate this appeal in so much as the right of Ashok Kumar Mishra respondent/writ petitioner to draw salary has been considered by Division Bench of this Court while dealing with Special Appeal (Defective) No. 367 of 2015 titled Ashok Kumar Mishra versus C/M Indira Gandi Intermediate College and others. The writ petition itself has been transferred to Allahabad for adjudication. The above extracted order has been vacated.
6. We have referred to order passed by Division Bench of this Court dated 25.5.2015 rendered in Special Appeal (Defective) No. 367 of 2015 (supra). The following would be relevant for consideration:-
xxxxxxxx "Briefly stated, the facts are that the appellant claims to have been appointed as an ad-hoc teacher in the L.T. Grade against a substantive vacancy which arose on 30 June 2003 upon the retirement of the then L.T. Grade Drawing Teacher. The name of the teacher who retired was Niyazuddin Siddiqui. The appellant filed a writ petition before the Lucknow Bench [Writ Petition No.6878 (S/S) of 2006] for a direction to the District Inspector of Schools to decide the claim of the appellant for the grant of salary on the post of Assistant Teacher L.T. Grade together with arrears. A learned Single Judge, at Lucknow, by an interim order dated 22 August 2006 directed the payment of monthly salary to the appellant with effect from 27 October 2003 in terms of the following order:-
"The petitioner has been working on a teaching post in the institution indicated in the writ petition for a substantial period of time. He has been discharging duties, functions and responsibilities of the post held by him. The employer - employee relations are continuing.
Accordingly, the opposite parties are directed to pay regular monthly salary to the petitioner with effect from 27.10.2003 and continue to pay the same every month.
xxxxxxxxxxxx When the special appeal came up before this Court on 19 May 2015, the Division Bench was apprised of the pendency of the writ petition filed by the appellant at the Lucknow Bench. The learned counsel appearing on behalf of the appellant, learned counsel for the Committee of Management and the learned Standing Counsel were agreed in stating before the Court that the interests of justice would require that the papers and the proceedings of the writ petition filed by the appellant at Lucknow also be called for and transferred to this Court at Allahabad since similar issues arose and a composite order would have to be passed. Accordingly, directions were issued to the Senior Registrar of the Lucknow Bench to transmit the papers and proceedings of Writ Petition No.6878 (S/S) of 2006. Those papers have been received and have been placed together with the special appeal.
Basically, at this stage, the issue before the Court is whether the appellant has a legitimate entitlement to the payment of his salary which, in turn, would determine the correctness of the order passed by the District Inspector of Schools in regard to the single operation of the account of the institution so as to facilitate the payment of salary to the appellant. The appellant claims to have been appointed on 15 October 2003 on ad-hoc basis against a substantive vacancy which was caused upon the retirement of the L.T. Grade Drawing Teacher.
xxxxxxxxxxxxxx As we have noted above, papers of Writ Petition No. 6878 (S/S) of 2006 filed by the appellant before the Lucknow Bench have now been transferred before this Court and have been tagged with the present special appeal. The order passed by the learned Single Judge at Lucknow directing the payment of salary to the appellant is, at least at the prima facie stage, unsustainable and would have to be accordingly vacated. The order shall, accordingly, stand vacated so as to bring about conformity between the orders in the two pending writ petitions before the learned Single Judges of this Court. Writ Petition No. 6878 (S/S) of 2006 shall be renumbered by the Registry at Allahabad and shall accordingly be tagged with Writ - A No.31214 of 2010. However, since both the petitions are pending for a considerable degree of time, we would request the learned Single Judge to hear the petitions at an early date.
We also clarify that the observations contained in the present order are prima facie observations and would not come in the way of the disposal of the pending proceedings.
The special appeal is, accordingly, disposed of. There shall be no order as to costs."
7. From the above extracted portion of the order, it becomes evident that in reference to the record of writ petition No. 6878 (S/S) of 2006 (supra) the Special Appeal Bench at Allahabad has adjudicated and held that the respondent would not be entitled to payment of salary. In such circumstances, we dispose of this appeal in terms of above extracted order dated 25.5.2015 rendered in Special Appeal (Defective) No. 367 of 2015.
Order Date :- 5.8.2019 prabhat