Court No. - 29

Case :- SPECIAL APPEAL No. - 834 of 2022

Appellant :- Shahabullah And 2 Others

Respondent :- C/M Madarsa Arabiya Ataur Rasool And 9 Others

Counsel for Appellant :- Kailash Singh Kushwaha,Sr. Advocate

Counsel for Respondent :- Hritudhwaj Pratap Sahi

Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

We have heard Sri Ashok Khare, learned Senior Counsel,

assisted by Sri K.S. Kushwaha, for the appellants; Sri V.K.

Singh, learned Senior Counsel, assisted by Sri H.P. Sahi, for the

respondents 1 and 2; and the learned Standing Counsel for the

respondents 3 to 7.

This intra court appeal is against an interim order dated

07.12.2022 of the learned Single Judge in Writ-A No.14150 of

2022 putting in abeyance the order of State Government dated

19.01.2022 directing payment of salary to the appellants with

effect from September 2011.

The order dated 19.01.2022 impugned in the writ petition was

challenged by the respondents 1 and 2 primarily on the ground

that services of the appellants were terminated in the year 2008;

the order of termination required no approval under law and

therefore it operated from the date of the order; that the order of

termination was never challenged by the concerned employees

in any court of law; that another set of employees were

appointed against the posts earlier held by the appellants

therefore, in such circumstances, the direction to pay salary was

void.

Learned Single Judge upon consideration of the submissions

and the grounds taken to challenge the order dated 19.01.2022,

by the impugned interim order directed that till the next date of

listing further disbursement of salary to the appellants under the

impugned order shall remain in abeyance.

The order impugned has been questioned by the learned counsel

for the appellants on the ground that the order of termination

was passed by a Committee which held no jurisdiction as it was

a mere usurper, therefore it was not accorded recognition and

the payment of salary to the appellants continued upto the year

2011. Whereafter, on account of dispute the matter remained

pending and, ultimately, on 31.10.2018 a decision was taken,

after ascertaining from reports that the appellants had been

serving the institution continuously and were paid salary till

2011, to pay them salary for the period during which salary was

stopped. This order of 31.05.2018 was questioned by the

respondents 1 and 2 by filing an objection and therefore the said

order was kept in abeyance and ultimately the objections were

rejected by the order dated 19.01.2022 and the direction for

payment of salary was maintained. It is submitted that when a

finding has been returned that the appellants had been regularly

serving the institution and the services were not validly

terminated, payment of salary to them cannot be faulted

therefore, the interim order passed by the learned Single Judge

deserves to be set aside.

In response to the above submissions, learned counsel for the

respondents 1 and 2 submitted that there is no requirement of an

approval to the order of termination; that the entire exercise

conducted by the State at its level was without jurisdiction. He

submitted that the order of termination was impliedly approved

by the order dated 27th August, 2010 as it approves payment of

salary to the new set of employees appointed consequent to the

termination of the appellants. He also submitted that though the

order dated 27th August, 2010 was rescinded/recalled by order

dated 31.05.2011 but the order dated 31.05.2011 was

questioned in Writ-A No.49226 of 2011 and the said order was

kept in abeyance. He submits that since the order dated 27th

August, 2010 continues to stand, the appellants were not

entitled to salary and therefore the learned Single Judge was

justified in passing the interim order.

At this stage, we have been apprised by the learned counsel for

the parties that inter se parties Writ-A Nos.58713