Madhya Pradesh High Court
School Education Department vs Sarita Mishra on 15 June, 2022
Author: Vivek Rusia
Bench: Vivek Rusia, Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 15th OF JUNE, 2022
WRIT APPEAL No. 539 of 2022
Between:-
1. SCHOOL EDUCATION DEPARTMENT
PRINCIPAL SECRETARY VALLABH BHAWAN,
BHOPAL (MADHYA PRADESH)
2. DISTRICT EDUCATION OFFICER THE STATE OF
MADHYA PRADESH M.O.G. LINES, INDORE
(MADHYA PRADESH)
3. CHIEF EXECUTIVE OFFICER ZILA PANCHAYAT
R/O INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ADITYA GARG, GOVT. ADVOCATE )
AND
1. SARITA MISHRA W/O SHRI G.P. MISHRA , AGED
ABOUT 49 YEARS, OCCUPATION: SERVICE,
SAHAYAK ADHAYAPAK IN PRIMARY SCHOOL
692 SUDAMA NAGAR, SETHI GATE INDORE
(MADHYA PRADESH)
2. COMMISSIONER INDORE MUNICIPAL
CORPORATION INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY NONE)
T h is appeal coming on for admission/orders this day, JUSTICE
VIVEK RUSIA passed the following:
ORDER
Appellants/State has filed the present writ appeal against order dated 20.8.2019 passed by the Writ Court in W.P. No.7608/2018.
2This appeal is barred by 994 days, therefore, I.A. No.3655/2022, an application for condonation of delay has been filed.
Learned Govt. Advocate appearing for appellants/State submits that the appellants have good prima facie case, therefore, the delay in filing the writ appeal be condoned.
The delay has been explained in Paragraphs 3, 4 and 5 of the application supported by an affidavit of the Officer-in-charge of the case. As per averments made in the application, vide letter dated 7.11.2019 the OIC of the case sought opinion from the office of Advocate General and the opinion was given on 29.11.2019. The Law Department granted the permission to file the writ appeal on 20.2.2020 which was communicated to the District Education Officer vide letter dated 3.3.2020 and thereafter Corona period was in force, therefore, the appeal could not filed. Finally, the OIC of the case approached the office of Advocate General on 4.5.2022 and thereafter filed the present writ appeal.
When the impugned order dated 20.8.2019 was passed, no Corona period was in force. The OIC of the case obtained the certified copy of the order in the month of November, 2019 and filed the Review Petition No.1312/2019 which was dismissed on 31.10.2019. The OIC of the case sought the opinion for filing a writ appeal vide letter dated 7.11.2019 which was given vide letter dated 29.11.2019 and it was forwarded to the Law Department and the permission was granted on 20.2.2020. During the Corona period, the Government Offices were functioning and even the filing in this Court was there through online. Therefore, during Corona period, the appeal could have been filed well within time, but now it has been filed with a delay of 994 days. We are not satisfied with the reasons for delay assigned in the application for condonation of delay.
3So far as merit of the case is concerned, the respondent/writ petitioner approached this Court by way of W.P. No.12065/2012 claiming regular pay- scale for the period from 3.2.2007 onwards. The said writ petition came to be allowed vide order dated 2.3.2016 directing the respondents/State to pay the arrears of salary along with interest @ 8.5% per annum and in case of non- compliance of the order within two months from the date of the order, then to pay interest @ 12.5% per annum. The aforesaid order was challenged by the respondents/State by way of W.A. No.1192/2017 which was dismissed on 15.12.2017. Despite dismissal of the writ appeal, when the order passed by the Writ Court was not complied with, the petitioner filed fresh petition (W.P. No.7606/2018). In this writ petition, the respondents/State came up with the reply that the petitioner has procured order dated 2.3.2016 in W.P. No.12065/2012 by suppressing the fact that she was unauthorisedly absent from duty, therefore, she is not entitled for the salary from 3.2.2007 and the arrears from August 2009 to 211. Learned Writ Court has not only dismissed the writ petition vide order dated 20.8.2019 but also directed for initiation of the contempt proceedings against the OIC of the case. Against the said order, R.P. No.1312/2019 was filed and that too has been dismissed on 31.10.2019. Hence the present writ appeal before this Court.
The sole contention of the learned Govt. Advocate is that the writ petitioner was unauthorisedly absent from duty, therefore, she is not entitled for the salary for the said period. The respondent/writ petitioner is throughout in service of the respondents/State. A charge-sheet could have been issued to her to establish the fact that she was unauthorisedly absent from duty. But no such step has ever been taken by the respondents/State. The unauthorised absence of 4 the writ petitioner has not been established by conducting any inquiry. Therefore, learned Writ Court has rightly declined to accept the plea of the respondents while dismissing the writ petition as well as review petition. In view of the above, we are not inclined to interfere with the order.
With the aforesaid, this writ appeal is dismissed in limine.
(VIVEK RUSIA) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
Alok
Digitally signed by ALOK GARGAV
Date: 2022.06.16 18:02:16 +05'30'