# Amar Babu Srivastava v. State of U.P. and others

- **Citation:** (2003) 3 ILRA 734
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-08-22
- **Case number:** Civil Misc. Writ Petition No.12643 of 1998
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-babu-srivastava-v-state-of-u-p-and-others-40185
- **Pages:** 4

## Headnote

Service law-Salary-Junior Division Clerk,
N.C.C. at Allahabad-Transferred order of
Transfer dt. 22.5.1987 not served on
Petitioner-could
not
joined
as
Transferred post-admittedly petitioner
presented
himself
on
3.6.1988
for
joining at Mirzapur-Since then entitled
for salary with all consequential benefits
not for period 27.5.1987 to 27.10.1997.
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3 All] Amar Babu Srivastva V. State of U.P.and others
735
Held- Para 9

The facts narrated above, show that the
petitioner was not at fault that the order
of transfer dated 22.5.1987 was not
served on him and as such he did not
join the transferred post of posting at
Mirzapur. It is not denied that the
petitioner
was
present
himself
on
3.6.1988 for joining at Mirzapur, since
then he was entitled for the salary and
all consequential benefits because he
was not permitted to work and as such
his salary for the period 27.5.1987 to
27.10.1997 cannot be withheld.

## Text

734 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
petitioners have no art or part to play nor
is it borne out from the record that the
order
has
its
genesis
in
the
misrepresentation or fraud of the parties.
Besides, the law is very clear that no
recovery could be made from the
petitioners unless any misrepresentation
or fraud is borne out from the record (see
JT 1995 (1) SC 24, 1979, ALJ 184 (DB)
and 1996 AWC 94).

15. As a result of foregoing
discussions,
Impugned
order
dated
22.8.2002 is quashed and the writ
petitions are allowed studed with the
following directions.

(1) The U.P. Jal Nigam shall frame
requisite ;scheme consistent with its
policy as done in the past, for
regularisation of Daily wage/muster
roll work charge employee who have
already completed five years of
service
in
the
department
for
regularisation . For this purpose, they
will also create additional posts in
addition to the 939 vacant posts
created earlier according to their
requirements and submit such scheme
within
two
months.
The
State
Government shall pass appropriate
orders in accordance with law and
communicate its decision within two
months from the date of receipt of
scheme from the Jal Nigam.

(2) No recovery of any amount paid as
salary under the orders of the Opp.
Parties shall be made from the
petitioners. In view of what has been
observed above in the body of this
judgment.

(3) No fresh appointment shall be made
in U.P. Jal Nigam in class 4 category
till all the persons entitled under the
scheme
mentioned
above,
are
considered for regularisation.

(4) In view of the assertions that all the
petitioners are discharging functions
at par with similarly situated regular
employees, the authorities shall go
into
the
matter
and
shall
pay
minimum of the pay scale plus
dearness
allowances
pending
regularisation . They shall not be paid
any other allowances.

(5) There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2003

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.12643 of 1998

Amar Babu Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri I.N. Singh
Sri Ajay Yadav
Sri Siddharath
Sri Narendra Mohan

Counsel for the Respondents:
S.C.

Service law-Salary-Junior Division Clerk,
N.C.C. at Allahabad-Transferred order of
Transfer dt. 22.5.1987 not served on
Petitioner-could
not
joined
as
Transferred post-admittedly petitioner
presented
himself
on
3.6.1988
for
joining at Mirzapur-Since then entitled
for salary with all consequential benefits
not for period 27.5.1987 to 27.10.1997.
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3 All] Amar Babu Srivastva V. State of U.P.and others
735
Held- Para 9

The facts narrated above, show that the
petitioner was not at fault that the order
of transfer dated 22.5.1987 was not
served on him and as such he did not
join the transferred post of posting at
Mirzapur. It is not denied that the
petitioner
was
present
himself
on
3.6.1988 for joining at Mirzapur, since
then he was entitled for the salary and
all consequential benefits because he
was not permitted to work and as such
his salary for the period 27.5.1987 to
27.10.1997 cannot be withheld.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard the counsel for the parties
and perused the record.

By means of this writ petition, the
petitioner has challenged the order-dated
30.3.1998 by which his salary for the
period 27.5.1987 to 27.10.1997 has been
withheld.

2. The case of the petitioner is that
he was working as Junior Division Clerk,
N.C.C. Allahabad and subsequently he
was made permanent. By the order-dated
22.5.87
he
was
transferred
from
Allahabad to Mirzapur, but the transfer
order
was
not
served
upon
him.
Thereafter,
the
transfer
order
was
published in the Newspaper "Amrit
Prabhat"
on
31.5.87,
which
was
challenged by means of Writ Petition
No.10824 of 1987. The order of transfer
was stayed by an interim order dated
24.6.1987.

3. The petitioner thereafter served
the certified copy of the interim order on
the respondent on 26.6.1987, but he was
not permitted to join at Allahabad.

The order of this Court passed in Writ
Petition No.10824 of 1987 is as under:-
"Heard Sri S.K.Garg, learned counsel
for petitioner and learned Standing
Counsel.
Petitioner
has
challenged
the
impugned order of transfer Annexure-1 to
the petition by which he was transferred
from Allahabad to Mirzapur.
Petitioner is a Junior Division Clerk
in NCC, which is transferable post, and
hence this court cannot interfere in the
transfer matter because transfer is an
exigency of Government. However, I am
informed that the petitioner is not being
permitted to join either at Mirzapur or at
Allahabad.
I
direct
the
authorities
concerned to give the petitioner a posting
within a month of production of a
certified copy of this order before him.
Petition is finally disposed of.

 Sd/-M.Katju,J.

 24.4.1997."

4. In pursuance of the aforesaid
order,
the
petitioner
submitted
representations before the respondents on
3.10.1991at
Allahabad
as
well
as
Mirzapur i.e. the place where he was
transferred, but there he was not permitted
to join on the ground that his case is
pending in the Court.

5. Aggrieved, the petitioner wrote to
various authorities vide letters dated
12.3.1989, 3.10.1991, 3.7.1993, 16.1.1995
and 8.4.1997 praying that he may be
permitted to join at either of the places i.e.
at Allahabad or at Mirzapur. Copies of
letters are annexed as Annexure-5 to
Annexure-9 to the writ petition.

6. By the order-dated 24.4.1997 this
Court
had
directed
the
authority
concerned to permit the petitioner to join
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736 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
either at Allahabad or at Mirzapur within
one month from the date of the order. The
petitioner served the aforesaid order dated
24.4.1997 upon the respondents on
26.4.1997, but no action was taken, hence
he filed contempt application no.2201 of
1997. After issuance of the notices in the
contempt petition, the petitioner was
directed to join his duties at Mirzapur
vide order dated 22.10.1997, Annexure11 to the writ petition. In pursuance
thereof the petitioner joined at Mirzapur
on 28.10.1997, but the respondents were
not paying his salary. He approached this
Court by means of Writ Petition No.2673
of 1998, wherein this Court directed the
respondents to pay current salary to the
petitioner vide order dated 27.1.1998. In
so far as the past salary is concerned, the
respondents were directed to take decision
within a period of 45 days, but they have
neither paid the current salary nor the past
salary to the petitioner. Aggrieved the
petitioner filed Contempt Application
No.638 of 1998.

7. In the aforesaid contempt
application, notices were issued to the
respondents by this Court. After receipt of
notices, they have paid the salary to the
petitioner on 28.2.1998 for the period
28.10-.1997 to 31.12.1997 and was
directed the petitioner to submit his
representation for payment of his past
salary. In compliance of the order, the
petitioner made a detailed representation
requesting the authority for payment of
his past salary. The representation was
also rejected by order-dated 30.3.1998,
which is impugned in the writ petition.

8. The counsel for the respondents
submits that the respondents have not
denied the allegation contained in Para 5
of the writ petition, wherein it has been
alleged that the petitioner made a request
to permit him to join duty either at
Allahabad or at Mirzapur.

9. The facts narrated above, show
that the petitioner was not at fault that the
order of transfer dated 22.5.1987 was not
served on him and as such he did not join
the
transferred
post
of
posting
at
Mirzapur. It is not denied that the
petitioner
was
present
himself
on
3.6.1988 for joining at Mirzapur, since
then he was entitled for the salary and all
consequential benefits because he was not
permitted to work and as such his salary
for the period 27.5.1987 to 27.10.1997
cannot be withheld.

10. It appears that the respondents
are habitual of not complying the order of
this
Court
only
after
contempt
proceedings are initiated against them.

11. For the reasons stated above, the
writ petition is allowed with costs
assessed
at
Rs.1000/-
directing
the
respondents to make payment of the past
salary for the period 27.5.1987 to
27.10.1997 with 10% compound interest
with half yearly rest, to the petitioner
within two months from the date of
production of a certified copy of the
order. In case respondents 2,3 and 4 fail to
make payment to the petitioner within the
allowed by this Court, an adverse entry be
recorded in their service books.
---------

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3 All] Jai Karan Singh V. Principal, Sri Singheshwari Inter college and others
737
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2003

BEFORE
THE HON'BLE R.B. MISRA, J.

Civil Misc. Writ Petition No. 23333 of 1990

Jai Karan Singh

...Petitioner
Versus
Principal, Sri Singheshwari Inter College,
and others

 ...Respondents

Counsel for the Petitioner:
Sri D.K. Srivastava

Counsel for the Respondents:
Sri S.S. Sharma
S.C.

U.P. Intermediate Education Act, 1921-
Regulations 35 and 36- Natural JusticeDismissal from Service for misconduct of
dereliction
of
duty,
disobedience,
insubordination
and
indisciplineReinstatement on written apologies-No
improvement-Termination
of
ServiceAdmittedly no enquiry as per Regulation
35 was conducted-No Inquiry Officer
appointed-charge sheet and evidences
relied upon with supporting documents
was not served not allowed to adduce
evidences and cross examine witnessesNo date, time and place of enquiry fixedNo
proper
opportunity
of
hearing
afforded -Order of Termination as well as
approval by D.I.O.S. set aside.

Held-Para 7

However, the enquiry in accordance to
the Regulation 35 and 36 of the 'Act' was
not
properly
conducted,
no
Inquiry
Officer namely senior most teacher was
appointed and the charge sheet and
evidences relied upon with supporting
documents was not served and the
petitioner was not allowed to adduce the
evidences and to cross-examine the
witnesses. The date, time and place of
the enquiry was not fixed and the
opportunity of hearing was not properly
afforded
to
him,
therefore,
the
termination order and the approval of
the termination by the District Inspector
of Schools is not legally sustainable.

(Delivered by Hon'ble R. B. Misra, J.)

1. Heard Sri D. K. Srivastava,
learned Counsel for the petitioner and Sri
S.S. Sharma, learned Standing Counsel
for the State respondent.

2. In this petition the order dated
1.6.1990 dismissing the service of the
petitioner
by
the
Principal,
Sri
Singheshwari Inter College, Tetri Bazar,
Siddharthanagar has been challenged.

3. Petitioner was given a charge
sheet for unauthorized absence and for
coming
late
several
days
and
for
irregularities
and
disobedience.
The
principal of the college served a notice to
the petitioner and after obtaining his
explanation the dismissal order dated
1.6.1990 was passed. According to the
petitioner his services were if at all could
only be terminated on the basis of
disciplinary enquiry conducting under
Regulation 35 of Chapter III of the U.P.
Intermediate Education Act, 1921 (in
short called 'Act'), which was brought on
10.3.1975 by notification No. 7/562-V-8
dated 10.3.1975, according to which for
the serious complaints and allegations the
Principal of the college was to appoint a
senior most teacher as an Inquiry Officer.
Regulation 35 of 'Act' reads as below: -
"35. On receipt of adverse report
regarding complaint or charges of serious
nature, the Committee shall appoint the
Principal or Headmaster as Enquiry
Officer in respect of teachers and other
employees (or Manager himself would
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