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2019 Supreme(All) 2049
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
Ajai Lamba, Manish Mathur, JJ.
Zila Basic Shiksha Adhikari Sultanpur and Ors. - Appellants
Vs.
Pawan Kumar - Respondent
Special Appeal No. 209 of 2011
Decided On : 04-09-2019
For the Appellant : Jyotinjay Verma
For the Respondents/Defendant: C.S.C., S. Chandra and Sachin Tiwari
Headnote:
Basic Education Act, 1972 – Chapter VIII – Rule 5 – Writ Petition praying for direction to opposite parties to pay salary to him for Class IV post of Peon with all consequential benefits along with arrears of salary dues along with interest. It has been stated that the said person had claimed to have appointed in Dayanand Junior High School, on the Class IV Post of Peon with effect from 01.05.2000. The said school was said to have been aided and recognized institution imparting education up to Class VIII and, therefore, was covered by the provisions of the Basic Education Act, 1972 and other concomitant Acts and Rules. It has been further stated that petitioner had claimed that he was duly appointed by the Management of the School but was compelled to file the Writ Petition since he was not paid salary for the said post by the authorities of the State Government despite repeated representations. While calling for the opposite parties to file their counter affidavit and issuing notices to the Management of the School, direction for payment of regular salary has been issued by means of the order –Held, Facts and circumstances of the case as juxtaposed with the relevant law on the point, it is apparent that the order impugned amounts to grant of final relief at the interim stage. Furthermore, the order impugned has been passed without recording any reason for the grant of interim relief even before calling for a counter affidavit and without considering the relevant facts. The grounds (a) and (b) taken by the appellant and noted in earlier part of the judgment therefore stand substantiated, we do not deem it appropriate at this stage to consider the rights of the respondent/writ petitioner with regard to the payment of regular salary, which would necessarily abide the final judgment to be rendered in the Writ Petition – Appeal allowed. (Para’s 17, 18)
Facts of the case:
Writ Petition praying for direction to opposite parties to pay salary to him for Class IV post of Peon with all consequential benefits along with arrears of salary dues along with interest. It has been stated that the said person had claimed to have appointed in Dayanand Junior High School, on the Class IV Post of Peon with effect from 01.05.2000. The said school was said to have been aided and recognized institution imparting education up to Class VIII and, therefore, was covered by the provisions of the Basic Education Act, 1972 and other concomitant Acts and Rules. It has been further stated that petitioner had claimed that he was duly appointed by the Management of the School but was compelled to file the Writ Petition since he was not paid salary for the said post by the authorities of the State Government despite repeated representations. While calling for the opposite parties to file their counter affidavit and issuing notices to the Management of the School, direction for payment of regular salary has been issued by means of the order.
Findings of the court:
Facts and circumstances of the case as juxtaposed with the relevant law on the point, it is apparent that the order impugned amounts to grant of final relief at the interim stage. Furthermore, the order impugned has been passed without recording any reason for the grant of interim relief even before calling for a counter affidavit and without considering the relevant facts. The grounds (a) and (b) taken by the appellant and noted in earlier part of the judgment therefore stand substantiated, we do not deem it appropriate at this stage to consider the rights of the respondent/writ petitioner with regard to the payment of regular salary, which would necessarily abide the final judgment to be rendered in the Writ Petition.
Result: Appeal allowed
ORDER :
(C.M. Application No.32438 of 2011)
1. The application seeks condonation of delay in filing the Special Appeal.
2. For reasons given in the affidavit in support of the application for condonation of delay, the delay in filing the appeal is hereby condoned.
3. The application is accordingly allowed.
4. We have heard learned counsel for appellant Sri Jyotinjay Verma, learned counsel for respondent No. 1 Sri Vinod Kumar Gupta Advocate holding brief of Sri Pt. S. Chandra learned counsel for respondent no. 1 and Sri Amitabh Shukla, learned counsel for the State.
5. This appeal has been filed against the order dated 28.10.2010 passed in Writ Petition No. 7514 (S/S) of 2010 whereby the opposite parties were directed to pay regular salary to the petitioner every month.
6. As per the pleadings in the appeal and the affidavit, filed in support of the application for stay, one Pawan Kumar filed the aforesaid Writ Petition praying for a direction to the opposite parties to pay salary to him for the Class IV post of Peon with all consequential benefits along with arrears of salary dues since 1.05.2000 along with interest. It has been stated that the said person had claimed to have been appointed in the Dayanand Junior High School, Shastri Nagar, Arya Samaj, Sultanpur on the Class IV Post of Peon with effect from 01.05.2000. The said school was said to have been aided and recognized institution imparting education up to Class VIII and, therefore, was covered by the provisions of the Basic Education Act, 1972 and other concomitant Acts and Rules. It has been further stated that the petitioner had claimed that he was duly appointed by the Management of the School but was compelled to file the Writ Petition since he was not paid salary for the said post by the authorities of the State Government despite repeated representations. While calling for the opposite parties to file their counter affidavit and issuing notices to the Management of the School, direction for payment of regular salary has been issued by means of the order dated 28.10.2010.
7. Sri Jyotinjay Verma, learned counsel for the appellant has assailed the order dated 28.10.2010 on the following grounds:-
(a) The order has granted final relief at the interim stage itself, which could not have been done;
(b) The order impugned is unreasoned and has been passed without considering all the relevant facts and circumstances of the case and without waiting for a written response from the State authorities which has been burdened with the payment of salary;
(c) The impugned order has been passed ignoring the settled principles relating to grant of writ in the nature of mandamus.
(d) The learned Single Judge has passed the impugned order without adverting to the fact that the Writ Petition had been filed with considerable delay of almost a decade.
Learned counsel for the appellant has relied upon the following decisions of Hon'ble the Supreme Court:
1. Raja Khan v. U.P. Sunni Central Waqf Board and another, reported in 2011 (29) LCD 67;
2. Pramod Kumar v. U.P. Secondary Education Services Commission and others reported in (2008) 7 SCC 153; and
3. Amrit Lal Berry v. Collector of Central Excise, reported in (1975) 4 SCC 714.
8. Learned counsel appearing on behalf of respondent no. 1 Pawan Kumar has, at the very outset, challenged the maintainability of the Special Appeal on the ground that the order impugned in the appeal is merely interlocutory in nature and does not come within the ambit of 'judgment' and since the nature of the order is not final, the Special Appeal would be barred under the Provisions of Chapter VIII Rule 5 of the Rules of this Court, 1952. He has refuted the assertions made by learned counsel for the appellant with the submission that the order impugned does not grant the final relief and has been passed after consideration of the relevant facts and circumstances of the case. He has relied upon the judgment rendered in the case of Basic Shiksha Adhikari, Ambedkar Nagar v. Smt. M
