# C/M Madhav U.M. Vidyalaya & Anr v. State of U.P. & Ors

- **Citation:** (2016) 1 ILRA 248
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-06-30
- **Case number:** Writ-C No. 7078 of 2016
- **Bench:** Dr. Dhananjaya Yeshwant Chandrachud, C.J. Yashwant Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/c-m-madhav-u-m-vidyalaya-anr-v-state-of-u-p-ors-43453
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Writ to
declare-the provisions of Section 5 of
Payment of Salaries Act 1971-Ultra Viresbeing contrary to Section 16-A (7) of U.P.
Intermediate Education Act 1921-heldboth provisions are state legislation-to
read harmoniously-no least conflictionpetition dismissed.
Held: Para-6
The Payment of Salaries Act is an Act to
regulate the payment of salaries to
teachers and employees of High School
and Intermediate Colleges receiving State
aid. The first proviso to Section 5(1)
empowers the Inspector to order single
operation of the bank account in the
circumstances
which
are
referred
to
therein. Section 6 (3) empowers the
Regional Deputy Director to supersede the
Management. In that event the Authorised
Controller is appointed, upon which he
shall
exercise
all
powers
of
the
Management including single operation of
the bank account. There is, thus, no
conflict of jurisdiction much less any
conflict between the statutory provisions.
Both sets of provisions are of State
legislation
and
have
to
be
read
harmoniously so as to give full effect to the
statutory scheme.

## Text

248
 INDIAN LAW REPORTS ALLAHABAD SERIES
36.
In Writ Petition No. 7446(SS) of
2015 a vacancy is said to have occurred
substantively on 30.06.2015 on account of
retirement against which the appointment has
been made by the Committee of Management
on
04.07.2015,
therefore,
clearly
the
appointment, if any, is de-hors the statutory
provisions and the rules made thereunder,
including Section 16-E (11) of the U.P.
Intermediate Act, 1921, consequently, no
direction for payment of salary from the State
Exchequer can be issued.
37.
In Writ Petition No. 7558(SS) of
2015 a challenge has been made to the
Government
Order
dated
10.05.2002
restraining the institutions from making
appointments against the vacancies arisen on
30.06.2002 with the stipulation that such
appointments can only be made by the Board.
In this case, the vacancies are said to have
arisen on 30.06.1999, 30.06.2002 and
30.06.2007 on account of promotion and
retirement of the incumbent. The writ petition
has been filed in the year 2015. Against the
aforesaid vacancies it is alleged that the
appointments were made in September, 2010.
Clearly, the appointments, if any, made by the
Committee of Management was de-hors the
Statutory
Provisions
and
rules
made
thereunder including Section 16-E (11) of the
U.P. Intermediate Act, 1921, therefore, no
direction for payment of salary can be issued
in this case also. The Government Order dated
10.05.2002 has to be read and understood in
the light of pronouncement referred herein
above.
38. All the Writ Petitions are
disposed of in the aforesaid terms.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.02.2016
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE YASHWANT VARMA, J.
Writ-C No. 7078 of 2016
C/M Madhav U.M. Vidyalaya & Anr.
 ...Petitioners
Versus
State of U.P. & Ors.
...Respondents
Counsel for the Petitioners:
Chandra Jeet Yadav, Anjali
Counsel for the Respondents:
CSC
Constitution of India, Art.-226-Writ to
declare-the provisions of Section 5 of
Payment of Salaries Act 1971-Ultra Viresbeing contrary to Section 16-A (7) of U.P.
Intermediate Education Act 1921-heldboth provisions are state legislation-to
read harmoniously-no least conflictionpetition dismissed.
Held: Para-6
The Payment of Salaries Act is an Act to
regulate the payment of salaries to
teachers and employees of High School
and Intermediate Colleges receiving State
aid. The first proviso to Section 5(1)
empowers the Inspector to order single
operation of the bank account in the
circumstances
which
are
referred
to
therein. Section 6 (3) empowers the
Regional Deputy Director to supersede the
Management. In that event the Authorised
Controller is appointed, upon which he
shall
exercise
all
powers
of
the
Management including single operation of
the bank account. There is, thus, no
conflict of jurisdiction much less any
conflict between the statutory provisions.
Both sets of provisions are of State
legislation
and
have
to
be
read
harmoniously so as to give full effect to the
statutory scheme.
(Delivered by Hon'ble Dr. Dhananjaya
Yeshwant Chandrachud, J.)
1 All.
 C/M Madhav U.M. Vidyalaya & Anr. Vs. State of U.P. & Ors.
249
1.
The petitioners have sought the
issuance of a writ for declaring the provisos to
Section 5 (1) of the Uttar Pradesh High
School and Intermediate Colleges (Payment
of Salaries of Teachers and Other Employees)
Act, 19711 as being ultra vires to Section 16A(7) of the Uttar Pradesh Intermediate
Education Act 19212.
2. Section 16-A of the Intermediate
Education Act provides for the framing of
a Scheme of Administration. Under subsection (7), it has been provided thus:
"(7) Whenever there is dispute with
respect to the Management of an
institution, persons found by the Regional
Deputy Director of Education, upon such
enquiry as is deemed fit to be in actual
control of its affairs may, for purposes of
this Act, be recognised to constitute the
Committee of Management of such
institution until a Court of competent
jurisdiction directs otherwise:
Provided that the Regional Deputy
Director of Education shall, before
making an order under this sub-section,
afford reasonable opportunity to the rival
claimants to make representations in
writing.
Explanation.
- In determining the
question as to who is in actual control of the
affairs of the institution the Regional Deputy
Director of Education shall have regard to the
control over the funds of the institution and
over the administration, the receipt of income
from
its
properties,
the
Scheme
of
Administration approved under sub-section
(5) and other relevant circumstances."
3.
Sub-section (7) of Section 16-A
applies where there is a dispute with respect to
the Management of an institution. In such an
event, persons found by the Regional Deputy
Director of Education, upon enquiry "to be in
actual control of its affairs" may, for the
purpose of the Act, be recognized to constitute
the Committee of Management of the
institution, until otherwise directed by a court
of competent jurisdiction. This provision
indicates that under sub-section (7), a power
has been conferred upon the Regional Deputy
Director of Education to recognize as a
Committee of Management such body which
is found to be in actual control of the affairs of
the institution. However, this is for the
purposes of the Act and the direction operates
until a court of competent jurisdiction decides
otherwise. The Explanation to sub-section (7)
of Section 16-A provides the circumstances
which are to be borne in mind in determining
as to who is in actual control of the affairs of
the institution. The Regional Deputy Director
of Education is to have regard to (i) control
over the funds of the institution; (ii) control
over the administration; (iii) control over the
receipt of income from its properties; (iv) the
Scheme of Administration approved under
sub-section (5); and (v) other relevant
circumstances.
4.
The Payment of Salaries Act
contains a provision in Section 5 for the
payment of salary of recognized institutions
which receive a maintenance grant from the
State Government. Under sub-section (1) of
Section 5, the Management is, for the
purpose of disbursement of salaries to its
teachers and employees, required to open a
separate bank account which is to be opened
jointly
by
a
representative
of
the
Management and by the Inspector or an
officer authorised by him. Under the first
proviso to sub-section (1) of Section 5, a
provision has been made for single operation
of accounts if the Inspector is satisfied that it
is expedient in public interest so to do. In
such an event, the Inspector would instruct
the bank that the account would be operated
by the representative of the Management
250
 INDIAN LAW REPORTS ALLAHABAD SERIES
alone. In other words, joint operation is
replaced by a direction for single operation
when it is expedient in public interest to do
so under the first proviso to sub-section (1)
of Section 5. Section 5(1) is extracted herein
below for convenience of reference:
"5. Procedure for payment of salary in the
case of certain institutions.- (1) The management
of every institution shall, for the purpose of
disbursement of salaries to its teachers and
employees, open in a Scheduled Bank or a Cooperative Bank a separate account to be opened
jointly by a representative of the management
and by the Inspector or such other officer as may
be authorised in that behalf:
Provided that after the account is
opened, the Inspector may, if he is,
subject to any rules made under this Act,
satisfied that it is expedient in the public
interest so to do, instruct the bank that the
account
shall
be
operated
by
the
representative of the management alone,
and may at any time revoke such
instruction:
Provided further that in the case
referred to in the proviso to sub-section
(2), or or where a difficulty arises in the
disbursement of salaries due to any
default of the management, the Inspector
may instruct the Bank that the account
shall be operated only by himself or by
such other officer as may be authorised by
him in that behalf and may at any time
revoke such instruction."
5. Section 6 of the Payment of Salaries
Act empowers the Inspector to recommend
action being taken against an institution
where he is satisfied that the Management
has committed default in complying with its
statutory obligations under Sections 3, 4 or 5.
Under sub-section (3) of Section 6, the
Regional Deputy Director is empowered,
upon considering the cause shown by the
Management, to supersede the Management.
Thereupon, after an order is made under subsection (3), the Authorised Controller shall,
to the exclusion of the Management, exercise
all the powers and perform the functions of
the Management including in respect of
management of the property belonging to or
vested in the institution. The Authorised
Controller would operate singly the bank
account referred to in Section 5. In other
words, once an Authorised Controller is
appointed under the provision of sub-section
(3) of Section 6, sub-section (4) mandates
that the bank account shall be operated
singly; the bank account being that which is
referred to in Section 5.
6. Once the provisions of Section 16A(7) of the Intermediate Education Act and
those of Section 5(1) and Section 6(4) of the
Payment of Salaries Act are appreciated in
their proper perspective, it is evident that
there is no conflict between the two sets of
provisions. Sub-section (7) of Section 16-A
empowers the Regional Deputy Director of
Education
to
recognize
who
should
constitute the Committee of Management
where there is a dispute with respect to
management, and the Explanation to subsection (7) contains a reference to the
circumstances which are to be borne in mind,
including control over the funds of the
institution. The Payment of Salaries Act is an
Act to regulate the payment of salaries to
teachers and employees of High School and
Intermediate Colleges receiving State aid.
The first proviso to Section 5(1) empowers
the Inspector to order single operation of the
bank account in the circumstances which are
referred to therein. Section 6 (3) empowers
the Regional Deputy Director to supersede
the
Management.
In
that
event
the
Authorised Controller is appointed, upon
which he shall exercise all powers of the
Management including single operation of
the bank account. There is, thus, no conflict
1 All. Jagroop Singh (U/A 227) Vs. Dist. Judge Hardoi & Ors.
251
of jurisdiction much less any conflict
between the statutory provisions. Both sets of
provisions are of State legislation and have to
be read harmoniously so as to give full effect
to the statutory scheme.
7. We do not find any reason or
justification to entertain the second prayer
for seeking enforcement of a Government
Order. The State Government is vested
with adequate powers to ensure that its
orders are duly enforced, albeit in
accordance with the provisions of law.
8. Consequently, we see no reason
to entertain the writ petition. The writ
petition is accordingly dismissed. There
shall be no order as to costs.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.02.2016
BEFORE
THE HON'BLE ANIL KUMAR, J.
Misc. Bench No. 7573 of 2015
Jagroop Singh (U/A 227) ...Petitioner
Versus
Dist. Judge Hardoi & Ors.
Respondents
Counsel for the Petitioner:
Bhagwandeen Sharma
Counsel for the Respondents:
--
C.P.C.-Order VI Rule-16-Amendment in
written
statement-after
closure
of
evidence-by
proposed
amendment
petitioner wants rescind from earlier
admission of written statement-certainly
affecting rights of plaintiff-rightly rejectedpetition dismissed.
Held: Para-12
In the instant matter from the perusal of
the judgment and order passed by the
court below , the admitted position which
emerge out is that petitioner's application
for amendment in written statement has
been
rejected
on
the
ground
that
petitioner
cannot
resile
from
the
admission made by him earlier in the
written statement. Keeping in view the
above said fact as well as settled
proposition of law, defendant cannot be
allowed from reciling rather taking U turn
from the earlier statement made by him
in the written statement in the garb of
amendment that will prejudice the case of
the plaintiff and it will cause injustice to
him.
Case Law discussed:
2009 (27) LCD 1096; L.Rs. 2008 (3) ARC 911
(Delivered by Hon'ble Anil Kumar, J.)
1. Heard Sri Bhagwandeen Sharma,
learned counsel for the petitioner and
perused the record.
2. Facts,in brief, of the present case
are that respondent no.3-Krishan Lal
Gupta/ plaintiff filed a Regular Suit
No.1048 of 2008 ( Krishan Lal Vs.
Jagroop) in the Court of Civil Judge( S.D.)
Hardoi. In the said matter petitioner
Jagroop Singh/ defendant filed written
statement thereafter an evidence on behalf
of the plaintiff was also closed. At this
stage, on behalf of petitioner/ defendant an
application for amendment in written
statement has been filed on 28.2.2014 to
which plaintiff/ respondent has filed
objection . The trial court/ Civil Judge (
S.D.) Hardoi by order dated 10.7.2014
rejected the application under Order VI
Rule 17 CPC moved on behalf of
petitioner on the ground that plaintiff
cannot resile from the admission which has
made in the written statement. The order
dated 10.7.2014 was challenged by the
petitioner by filing Revision No. 43 of
2014( Jagroop Singh Vs. Krishan Lal