Allahabad High Court
Kamlesh Prasad Tiwari vs State Of U.P. And 4 Others on 22 January, 2020
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 81 Case :- WRIT - A No. - 68373 of 2013 Petitioner :- Kamlesh Prasad Tiwari Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- L.K. Dwivedi,Ashok Khare Counsel for Respondent :- C.S.C. Hon'ble Yashwant Varma,J.
Heard learned counsel for the petitioner and the learned Standing Counsel for the State-respondents.
This petition impugns the order dated 26 October 2013 passed by the Regional Level Committee, Allahabad negativing a claim of the petitioner for release of salary. The instant petition represents the third foray by the petitioner before this Court constrained by the refusal on the part of the respondents to release salary and other benefits even though he is stated to have worked as an Assistant Teacher in the Institution right from 1982. Rather than burdening this judgment with a reiteration of facts it would be apposite to extract the following parts from the decision which were entered inter partes on earlier occasion. Before proceeding to do so it may only be noted that the petitioner asserts having been appointed as an Assistant Teacher in the Institution and was duly discharging his duties therein right from 1982. The college in question was recognized and taken on the grant in aid list by the State Government on 1 April 1996. The case of the petitioner is that there were 8 sanctioned posts in the C.T. Grade and 2 posts in the L.T. Grade cadre. Reference has been made to the initial order of 27 August 2000 to indicate that although there were 11 posts sanctioned in the Institution, the claim of the petitioner for grant of salary was wrongly denied. Dealing with that contention and after noticing the respective stand of parties, a learned Judge allowed Civil Misc. Writ Petition No. 45273 of 2000 (Munni Lal Pal & Another Vs. Joint Director of Education, Ivth Region, District Allahabad and Others) holding as under:
"3. Learned counsel for the petitioners has invited attention of this court towards the averment contained in para 10 of the Counter Affidavit and proceeded to submit that there are eight posts of C.T. grade teachers, two posts are of L.T. Grade teachers and one post is of Head Master. Thus, the total number of posts of teachers including the Head Master comes to eleven. At the first page of the impugned order, it has been stated that there are three regular vacancies in the teachers cadre. However, in the operative portion of the impugned order, it has been indicated that three is only one vacant post. Keeping in view the averment made in para 10 of the Counter Affidavit as well as a combined reading of the impugned order which indicates that the total number of posts in college in question is eleven including the post of Head Master, the impugned order seems to be an act of non application of mind and the writ petition deserves to be allowed. There appears to be three vacancies against which petitioners can be very well adjusted.
A writ in the nature of certiorari is issued quashing the impugned order dated 27th of August, 2000 passed by the District Inspector of Schools, Allahabad as contained in Annexure No. 11 to the writ petition with consequential benefits.
Opposite parties are directed to reconsider petitioners' case for payment of salary keeping in view the observation made hereinabove by passing a speaking and reasoned order expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order and shall communicate the decision to the petitioner.
The writ petition allowed accordingly. No order as to costs."
Upon remand the claim of the petitioner was negatived yet again constraining him to institute Writ -A No. 58574 of 2008 (Kamlesh Prasad Tiwari Vs. State of U.P. & Others). That petition too came to be allowed by a learned Judge of the Court on 9 October 2012 holding as follows:
"Considered the submission of counsel for the parties. It is not disputed that the petitioner was appointed in the institution and the institution came in the grant-in-aid list w.e.f. 1.4.1996, hence those teachers who were appointed and were working in the institution on the relevant date and were qualified and eligible for appointment on that post, they were entitled for the salary. However, the approval was given by the order dated 2.9.1997 only for seven teachers and thereafter on 21.5.1998, the approval was granted to one Assistant Teacher Jai Prakash Shukla. Out of ten sanctioned posts, the payment is being made only to seven teachers and it has been admitted in the impugned order itself that the post of Principal as well as three Assistant Teachers were vacant on which there was no approval for payment of salary. When the earlier claim of the petitioner was rejected, Writ Petition No. 45273 of 2000 was filed in which the averment made in Para 10 of the counter affidavit and the impugned order was considered and it was observed that there was 11 posts in the institution in question, one post was of the Headmaster and further observation was that "There appears to be three vacancies against which petitioners can be very well adjusted." and the order dated 27.8.2000 was quashed with the direction to reconsider the case of petitioners for payment of salary by passing a speaking and reasoned order. In spite of the clear direction and observation of this Court, the claim of the petitioner has been rejected though there are admittedly three clear vacancies. As per information, the Special Appeal has been dismissed in default on 18.9.2012, hence there are three vacancies however apart from that admittedly there was one vacancy there and the petitioner was entitled for payment of salary much before the interim order was passed on 13.8.2003 in the petition of other Assistant Teachers. Hence, in view of the fact, the petitioner is entitled for payment of salary since admittedly the institution is under the grant-in-aid list and is entitled for payment of salary in accordance with the provisions of Act 1971 and other provisions applicable to the High School and Intermediate Colleges. The impugned order dated 28.7.2008 passed by Joint Director Education, IVth Region, Allahabad is against the facts and law which is arbitrary and illegal, hence, the same is hereby quashed. The Joint Director of Education, IVth Region, Allahabad, respondent no. 2 is directed to consider the claim of the petitioner for payment of salary, in accordance with law, expeditiously, preferably within two months after furnishing certified copy of this order. After passing the order by the Joint Director Education, IVth Region, Allahabad and the consequential order by the D.I.O.S. for payment of salary to the petitioner in accordance with law, the same will communicate to the Registry of this Court to place the same on record of the petition.
Accordingly, the present petition is allowed. No order as to cost."
As is evident from the issues which were canvassed the principal objection which was taken by the respondents was with regard to the total number of sanctioned posts in the institution in question. However, upon the matter being remanded yet again the impugned order of 26 October 2003 invents a new ground to annul the claim of the petitioner. This time around the Regional Level Committee has come to hold that the order of 2 February 1982 in terms of which approval is stated to have been accorded to the initial appointment of the petitioner is forged. In recording this conclusion the Regional Level Committee has held that the letter of 2 February 1982 mentions a dispatch number which is of another letter but which does not exist on the record of the District Inspector of Schools, Allahabad. The findings so recorded in the order impugned is in the following terms:
"12+ & ftyk fo|ky; fujh{kd bykgkckn us viuh vk[;k esa Li"V mYys[k fd;k gS fd ftyk csfld f'k{kk vf/kdkjh ds vfUre nks i=ksa esa ftu 08 v/;kidksa dk vuqeksnu nks frfFk;ksa esa i=kad@izcU/k&2@4073@81&82 fnukad 02-02-82 rFkk i=kad izcU/k&2@3140@81&82 fnukad 26-5-82 }kjk fd;k x;k mldh iqf"V ftyk csfld f'k{kk vf/kdkjh ls djk;s tkus ds mijkUr ;g Li"V gqvk fd rhljk i= fnukad 26-05-82 muds dk;kZy; ls fuxZr ugha gS vkSj f}rh; i= fnukad 02-02-1982 esa tks fMLiSp uEcj gS og u gksdj vU; i= ftldh izfr ftyk csfld f'k{kk vf/kdkjh ds dk;kZy; esa orZeku esa ugha gSA ftyk fo|ky; fujh{kd bykgkckn us ewy fMLiSp iaftdk dks ns[kdj Hkh ijh{k.k djus dh iqf"V dh gSA"
It is on that basis that the Regional Level Committee then proceeds to observe as under:
"14& mijksDr ls Li"V gS fd tc ftyk csfld f'k{kk vf/kdkjh bykgkckn ds i=kad izcU/k&2@4073@81&82 fnukad 2-2-82 tkWp mijkUr ik;k x;k fd QthZ gSA blls Li"V gS fd fnukad mi f'k{kk funs'kd bykgkckn e.My bykgkckn ds i=kad lh0@7397&401@fnukad 8-7-87 }kjk iz/kkukpk;Z&1 ,y0Vh0&2 lh0Vh0&8 fyfid&1 ifjpkjd&5 dqy 17 in in l`ftr fd;s ftlds QyLo:i ftyk fo|ky; fujh{kd bykgkckn ds i=kad@65028@88&89 fnukad 7-10-89 }kjk fuEufyf[kr v/;kidks ,oa deZpkfj;ksa dks ek/;fed f'k{kk vf/kfu;e 1921 ds v/;k; nks ds fofu;e&4 ds izkfo/kku ds vUrxZr twfu;j gkbZ Ldwy Lrj ij dk;Zjr v/;kidksa ,oa deZpkfj;ksa dks gkbZ Ldwy Lrj ij ekU; fd;k x;k ml le; rd ;kph Jh deys'k frokjh ,oa eqUuh yky iky dk uke ugha FkkA blds iwoZ 2-2-82 dks ;kph ds uke vafdr djrs gq, QthZ lwph layXu djds ;kphx.kksa dks osru Hkqxrku djkus dk iz;kl fd;k x;k gS tks fd iw.kZrk tkWp esa QthZ ik;k x;k gSA"
This Court finds itself unable to either countenance or sustain the reasoning as adopted by the Regional Level Committee. The mere fact that the letter of 2 February 1982 is alleged to carry the dispatch number of another letter which admittedly did not exist on the record of the District Inspector of Schools, Allahabad cannot possibly sustain the allegation of forgery. The Court has not been apprised of the basis or the material on which the Regional Level Committee comes to hold that the dispatch number which is mentioned in the letter of 2 February 1982 is actually that of another letter. Additionally, and as noted hereinabove, the so called letter which carried that dispatch number has neither been brought on the record and in fact as has been noted in the order of the Regional Level Committee was not found in the office of the District Inspector of Schools, Allahabad.
The second reason which is assigned by the Regional Level Committee is also clearly unsustainable. The Committee refers to a communication of 7 October 1989 to hold that the name of the petitioner was not included in the chart appended with this communication and consequently it must be held that the letter of 2 February 1982 was forged and fabricated. The aforesaid reasoning as assigned is bereft of all logic. If the name of the petitioner was duly included in the communication of 2 February 1982, the mere fact that it did not feature in the chart appended to the subsequent communication of 7 October 1989 cannot possibly lead this Court to conclude that the same is forged. Forgery, it must be necessarily held has a specific connotation in law. The Committee does not allude to any material in support of its conclusion of the communication of 2 February 1982 being forged apart from what is noted above.
Additionally, the respondents never took the stand that the same was forged or fabricated in the earlier round of litigation. Additionally, the Court is apprised that two other Assistant Teachers namely Ramraj Pal and Sri Ramakant Pandey whose names also stood included in that communication have continued to draw salary and other benefits. In light of the above, the Court finds itself unable to sustain the impugned order.
The Writ Petition is accordingly allowed. The impugned order dated 26 October 2013 is quashed. A mandamus is consequently issued commanding the respondents to forthwith release the arrears of salary to the petitioner from 1 April 1996 and to further ensure that his salary is paid month to month as and when it falls due. Bearing in mind that the petitioner has been unnecessarily constrained to litigate before this Court on more than three occasions as also the specious ground on which the impugned order rests the Court is also of the firm view that the members of the Regional Level Committee who authored the impugned communication must be also saddled with costs which is quantified as totalling Rs.15,000/- divisible equally against the 3 members of the Regional Level Committee and to be recovered from their salary or retiral benefits as the case may be.
Order Date :- 22.1.2020 Arun K. Singh (Yashwant Varma, J.)