Suresh Prasad Chaubey vs D.I.O.S. and Others

Devendra Pratap Singh, J.

The following order was passed on 29.10.2010:

Heard learned Counsel for the parties.

The Petitioner was appointed as an Assistant Teacher on 22.8.1991 in Jai Prabha Kanya Uchchatar Madhyamik Vidyalaya, Tillali (Baghuri) in district Ballia, which is a duly recognized and aided institution, after following due procedure prescribed under law. However, the salary was not being paid forcing him to file Writ Petition No. 15273 of 1992, and after exchange of pleadings, a learned Single Judge of this Court vide order dated 16th May 1997 allowed the writ petition holding that the appointment was valid and directed payment of salary if he is working in the institution. Though the Petitioner had started working from 23.8.1991, the District Inspector of Schools by the impugned order dated 16.4.1998 passed a consequential order, but directed that the salary would be paid from the date of the order itself. When this petition was entertained, the learned Standing counsel was granted time to file counter affidavit which was extended from time to time but no counter affidavit was filed. Ultimately the Court passed the following order on 1.10.2008:

Heard counsel for the Petitioner as well as learned Standing Counsel.

It has been stated by the counsel for the Petitioner that the Petitioner was appointed as an Assistant Teacher alongwith one Smt. Usharjita Pathak, but as the salary was not being paid to them as such they have preferred a writ petition in this Hon''ble Court, which was numbered as Writ Petition No. 15273 of 1992 and this Hon''ble Court, after exchange of pleadings, has recorded a specific finding that the appointments were made in accordance with the provisions of Section 18 of the U.P. Secondary Education Service Commission and Selection Board Act, 1982 and as such the District Inspector of Schools was directed to make the payment of the Petitioners'' salary. In compliance of the orders of this Court, the Petitioner made a representation to the District Inspector of Schools praying therein for making payment of arrears of salary, which was rejected by the District Inspector of Schools interalia on the ground that for the period in between the date of appointment and the date of approval, the salary is to be paid by the Committee of Management for which the Government is not responsible.

List on 5th November, 2008 on which date the then District Inspector of Schools , Ballia, Smt. Lalita Pradeep shall appear in person before the Court to show cause as to how she sat over the orders passed by the High Court.

However, on 5th of November 2008 it was pointed out that the concerned District Inspector of Schools had met with an accident and as such the matter was adjourned and when the matter was taken up on 5th of July, 2010, neither the counter affidavit was filed nor the District Inspector of Schools appeared. Ultimately the following relevant order was passed on 21.7.2010:

Prima facie, the said view taken by the District Inspector of Schools is erroneous, inasmuch as, the writ petition was allowed on 16.05.1997. This judgment has become final. The District Inspector of Schools cannot therefore alter the date from which the Petitioner is entitled for payment of salary in terms of the judgment dated 16.05.1997.

The District Inspector of Schools, Ballia shall therefore show cause within three weeks as to why the Court may not recommend disciplinary action to be taken against him as also the then District Inspector of Schools, who had passed the impugned order keeping in view the aforesaid status of the employment of the Petitioner which stands categorically saved in terms of the judgment dated 16.05.1997 as in the opinion of the Court, the action of the District Inspector of Schools under the impugned order is even otherwise contemptuous apart from being contrary to law. The cause may be shown by 2nd August, 2010 or in the alternative the Petitioner be released his salary.

List on 2nd August, 2010.

On 2nd of August 2010, again neither the counter affidavit was filed or payment made nor the District Inspector of Schools appeared and the matter was posted for 17th of August 2010 when the following relevant order was passed:

Today the officer is present and states through learned Standing counsel that for compliance of the order, some time may be granted.

Accordingly, list on 25.8.2010 by which time the order should be complied and affidavit to that effect be also filed giving the details of payment together with calculation.

Thereafter various orders were passed and finally bailable warrant was issued on 17.9.2010 when the Manager and the DIOS appeared on 8.10.2010 when the following relevant order was passed:

Today the Manager Shri Rajdhari Singh is present along with his compliance affidavit stating that on issuance of bailable warrants he received intimation from the District Inspector of Schools about the aforesaid order dated 25.8.2010 and thereafter contacted the office of the District Inspector of Schools and after going through the order dated 17.9.2010, immediately he submitted the salary bill of the applicant from 23.8.1991 to 15.4.1998 amounting to Rs. 2,52,683/-in the office of the District Inspector of Schools. However, no calculations have been given and there is no averment that he did not receive the letter dated 23.8.2008 or the letter dated 24.9.2010.

The present District Inspector of Schools, Shri Yogendra Kumar Singh has filed his counter affidavit along with an application stating that he took charge of the office on 16.9.2010 and when he was intimated about the order of this Court dated 17.9.2010 through the letter of the Chief Standing Counsel dated 20.9.2010, he immediately enquired into the matter and found that a letter had already been sent to the Management and the Principal dated 23.8.2010 asking them to submit salary bill but it was not complied and therefore, a reminder dated 24.9.2010 was also sent where after the institution submitted the salary bill only on 1.10.2010 and after receiving the same it was examined at the level of the Accounts Officer where after he approached the Directorate which sanctioned the budget vide order dated 7.10.2010 and the payments would be made within the next two weeks.

Learned Counsel for the Management and the District Inspector of Schools may file a better affidavit keeping in mind the observations made hereinabove. The Respondents will also show cause why interest be not saddled on them for the delayed payment of the amounts.

Learned Standing Counsel may inform the author of the order dated 16.4.1998 M/s Lalita Pradeep to appear on the next date along with her explanation.

In case the affidavit as observed above is filed by the Manager and the present District Inspector of Schools by the next date, they need not appear.

List on 29.10.2010.

In compliance of the aforesaid order, Ms. Lalita Pradeep, the then DIOS has appeared alongwith a compliance affidavit and an unconditional apology stating that she cannot explain the circumstances under which she had passed the order dated 16th of April 1998, but admits that the order should not have been passed and it was a mistake.

The present associate DIOS, Ballia has also filed an affidavit stating that a sum of Rs. 2,37,683/-has been paid to the Petitioner and orally the Court has been informed that the remaining amount has been adjusted in the GPF account of the Petitioner. The Manager Sri Raj Dhari Singh has filed his affidavit reiterating that neither he nor the Principal received the order of the DIOS dated 23.8.2010 or its reminder dated 24.9.2010.

There is a specific averment in the writ petition that the Petitioner has been continuously working from August 1991, this fact has not been denied either by the management or the DIOS. However, her salary which was to be paid within three months of the judgment dated 16.5.1997 was not paid within time, though regular salary was paid from May 1998. Thus, it is apparent that the salary of the period August 1991 to April 1998, which was to be paid latest by August 1997, was paid in October 2010 and that too when the Court summoned the officials. None of the Respondents have replied to the show cause why interest on the delayed payment be not awarded to the Petitioner who has suffered a lot and was deprived of his rightful due. His right to receive the salary for the aforesaid period from the State Respondents has also not been disputed by any of them.

Accordingly, the writ petition succeeds and is allowed. Since the arrears of salary from August 1991 to April 1998 has now been paid in October 2010, no mandate for it need be issued. However, in view of the facts herein above noted, the Petitioner shall be entitled to 6% per annum simple interest on the amount of salary now paid from August 1997 to October 2010, which should be quantified and paid to the Petitioner within six weeks from today, failing which the Petitioner shall be at liberty to file an application in this petition. It would be open to the State Government to recover the interest amount from its officers responsible for the delayed payment.

In the circumstances of the case, no order as to costs."

However, an application has been filed on behalf of the Petitioner stating that despite the aforesaid order, the interest amount has not been paid though the management has forwarded the bills of interest to the District Inspector of Schools.

Learned Standing Counsel may file a reply or else the District Inspector of Schools and Account Officer in his office, District, Ballia shall appear in person.

Let a copy of this order be given to the learned Standing counsel within 48 hours.

List on 8.7.2011.