# Govind Narayan Shukla v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-30
- **Case number:** Civil Misc. Writ Petition No. 8060 of 1999
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-narayan-shukla-v-state-of-u-p-and-others-40386
- **Pages:** 5

## Headnote

Sri Anupam Shukla
Sri P.K. Sharma
S.C.

U.P. Junior High School (Payment of
Salary to Teachers and other Employees
Act, 1978-Appoint of petitioner Assistant
Teacher on vacancy caused by removal
of Smt. Sudha Yadav-Salary withheld on
objection by Accounts officer-matter
referred to D.E. (Basic)-Rejection of
petitioner's claim for payment of salary
by Director of Education (Basic) on
ground that under High Courts order one
Ram Prakash was entitled to be adjusted
against vacancy caused one termination
of services of Smt. Sudha Yadav-Writ
against-held, impugned orders passed by
D.E. (Basic) and Basic Shiksha Adhikari
are
illegal
as
they
are
based
on
misconception of fact that Sri Ram
Prakash was liable to adjusted against
vacancy caused due to removal of Smt.
Susha Yadav-held, said vacancy is a
independent vacancy-It has nothing to
do with payment of salary to Sri Ram
Prakash, nor right of petitioner can be
defected on ground that Ram Prakash
should be adjusted against vacancy
caused on removal of Sudha Yadav-
impugned order quashed.
http://www.allahabadhighcourt.nic.in
1All] Govind Narayan Shukla V. State of U.P. and others
79
Held: Para 7

In view of the above the order passed by
the Director of Education (Basic) dated
29.12.1998
and
the
order
dated
01.01.1999 passed by the Basic Shiksha
Adhikari are illegal inasmuch as they are
based on misconception of fact that Sri
Ram Prakash was liable to be adjusted
against the vacancy which has been
caused due to removal of Srimati Sudha
Yadav. It is held that the vacancy which
has been caused due to removal of
Srimati Sudha Yadav is an independent
vacancy which has nothing to do with
the payment of salary to Sri Ram
Prakash nor the right of the petitioner
can be defeated on the ground that Ram
Prakash should be adjusted against the
vacancy caused due to removal of
Srimati Sudha Yadav.

## Text

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
78
Committee of Management had been
actually passed or not. This writ petition
deserves to be allowed only on the
aforesaid
ground
itself
that
prior
concurrence of the Board had not been
obtained before the passing of the
dismissal order.

6. In view of the statement made by
Sri Ashok Kumar Srivastava, learned
counsel for the contesting respondent that
since the writ petition is being allowed on
technical
ground,
the
respondentauthorities may be permitted to initiate de
novo proceeding against the petitioner
and fresh enquiry may be permitted to be
conducted in accordance with law on the
basis of which suitable order may be
passed, I am not inclined to go into the
question as to whether the Enquiry
Officer was properly appointed or not.

7. This writ petition is, accordingly,
allowed. The impugned order dated
20.5.2003 is quashed. The petitioner shall
be entitled to all consequential benefits.
He shall be reinstated in service and be
paid his salary alongwith arrears of salary
to which he may be found entitled to
under law.

8. Having regard to the facts and
circumstances
of
this
case,
if
the
Respondent-Federation is so advised, it
shall be open to them to take suitable
action in accordance with law only after
conducting fresh enquiry as per the
applicable Rules and Regulations, in
which the petitioner shall be permitted to
participate, and the Federation may pass
appropriate fresh orders on the basis of
the said enquiry report.
Petition Allowed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.11.2004

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 8060 of 1999

Navin Chandra

...Petitioner
Versus
Basic Shiksha Adhikari, Etah and others.

 ...Respondents

Counsel for the Petitioner:
Sri L.N. Misra
Sri Anil Bhushan

Counsel for the Respondents:
Sri Anupam Shukla
Sri P.K. Sharma
S.C.

U.P. Junior High School (Payment of
Salary to Teachers and other Employees
Act, 1978-Appoint of petitioner Assistant
Teacher on vacancy caused by removal
of Smt. Sudha Yadav-Salary withheld on
objection by Accounts officer-matter
referred to D.E. (Basic)-Rejection of
petitioner's claim for payment of salary
by Director of Education (Basic) on
ground that under High Courts order one
Ram Prakash was entitled to be adjusted
against vacancy caused one termination
of services of Smt. Sudha Yadav-Writ
against-held, impugned orders passed by
D.E. (Basic) and Basic Shiksha Adhikari
are
illegal
as
they
are
based
on
misconception of fact that Sri Ram
Prakash was liable to adjusted against
vacancy caused due to removal of Smt.
Susha Yadav-held, said vacancy is a
independent vacancy-It has nothing to
do with payment of salary to Sri Ram
Prakash, nor right of petitioner can be
defected on ground that Ram Prakash
should be adjusted against vacancy
caused on removal of Sudha Yadav-
impugned order quashed.
http://www.allahabadhighcourt.nic.in
1All] Govind Narayan Shukla V. State of U.P. and others
79
Held: Para 7

In view of the above the order passed by
the Director of Education (Basic) dated
29.12.1998
and
the
order
dated
01.01.1999 passed by the Basic Shiksha
Adhikari are illegal inasmuch as they are
based on misconception of fact that Sri
Ram Prakash was liable to be adjusted
against the vacancy which has been
caused due to removal of Srimati Sudha
Yadav. It is held that the vacancy which
has been caused due to removal of
Srimati Sudha Yadav is an independent
vacancy which has nothing to do with
the payment of salary to Sri Ram
Prakash nor the right of the petitioner
can be defeated on the ground that Ram
Prakash should be adjusted against the
vacancy caused due to removal of
Srimati Sudha Yadav.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard Sri Anil Bhushan on behalf
of the petitioner, Standing Counsel on
behalf of respondents 1, 3 and 4, Sri
Anupam Shukla and Pramod Kumar
Sharma on behalf of respondent no. 2.

2. The institution by the name of
Junior High School, Rustamgarh, district
Etah, is a recognized institution under the
provisions of the Basic Education Act and
is also on the grant-in-aid list of the State.
The provisions of the U.P. Junior High
School (Payment of Salary to Teachers
and other Employees) Act, 1978 are fully
applicable to the said institution. The said
institution was taken on the grant-in-aid
list of the State on 02.11.1985 w.e.f. 1984
and at the relevant time one post of
Principal, 5 posts of teachers, clerk and
class IV employees were duly sanctioned
for the said institution. According to the
petitioner the services of one Srimati
Sudha Yadav who was working as
Assistant Teacher in the institution and
was being paid salary under the grant-inaid upto the year 1996, were terminated
by the Committee of Management the
resolution whereof was approved by the
Zila Basic Shiksha Adhikari by order
dated 22.11.1996. In the vacancy so
caused the management applied for
permission to make fresh appointment,
after
the
permission
was
granted
necessary advertisement was made and a
selection committee was constituted. The
petitioner applied for the said post in
pursuance of the said advertisement. The
selection committee found the petitioner
to be most suitable and accordingly
recommended
the
petitioner
for
appointment.

Relevant
papers
for
approval of the Zila Basic Shiksha
Adhikari
were
forwarded
by
the
Committee of Management. The Zila
Basic Shiksha Adhikari vide order dated
06.02.1997 approved the said selection
and granted permission for appointment
of the petitioner. The Committee of
Management issued appointment letter
dated 07.02.1997 in favour of the
petitioner. In pursuance of the said
appointment letter the petitioner joined on
08.02.1997 and since then is continuously
working in the institution as Assistant
Teacher. The salary bill submitted by the
management of the institution in respect
of the petitioner was not cleared and an
objection was raised by the Accounts
Officer, respondent no. 4. The matter as
such was referred to the Director of
Education (Basic). The Director of
Education (Basic) vide order dated
19.12.1998 turned down the claim of the
petitioner for payment of salary on the
ground that under the orders of this Court
one Sri Ram Prakash was entitled to be
adjusted against the vacancy which has
been caused due to termination of services
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
80
of Srimati Yadav in view of the fact that
there were only 5 sanctioned posts of
Assistant Teacher and if payment of
salary is made to the petitioner it may
amount to sanction of an additional post
of Assistant Teacher. In compliance of
the aforesaid order the Basic Shiksha
Adhikari refused to grant permission for
payment of salary to the petitioner vide
letter dated 01.01.1999 with the remark
that the vacancy which has been caused
due to resignation of Srimati Sudha
Yadav
is
to
be
adjusted
by
the
appointment of Sri Ram Prakash. It is
against the aforesaid order that the present
writ petition has been filed.

3. It is contended on behalf of the
petitioner that Sri Ram Prakash had filed
Writ Petition No. 14467 of 1996 with the
allegation that he was appointed as
Assistant Teacher in the institution in the
year 1987. When the institution was
taken on the grant-in-aid list his name was
wrongly left out from being included as
valid teacher for the purposes of payment
of salary under the U.P. Junior High
School (Payment of Salary to Teachers
and other Employees) Act, 1978. The
writ petition filed by Sri Ram Prakash
was allowed by means of judgment and
order dated 25.08.1997and it was held
that Sri Ram Prakash is entitled to
payment of salary from 1984 till date as
well as future salary also. The operative
portion of the order passed by this Court
in the said writ petition is as under:--

"In the result this petition succeeds
and is allowed. Opposite party no. 2 is
directed to pay salary of petitioner from
1984 till date and continue paying the
same."

4. In this back ground it is submitted
that admittedly Sri Ram Prakash was paid
salary under the orders of this Court with
effect from 1984 i.e. from the date the
institution was taken on the grant-in-aid
list and further during this period Srimati
Sudha Yadav was also permitted to work
as Assistant Teacher and was also paid
her salary under the grant-in-aid. It is,
therefore, submitted that continuance of
Sri Ram Prakash as Assistant Teacher and
payment of salary to him under the orders
of this Court has nothing to do with the
vacancy which has been caused due to
removal
of
Srimati
Sudha
Yadav.
According to the petitioner the orders
passed by the Director of Education
(Basic) and the Basic Shiksha Adhikari
dated
29.12.1998
and
01.01.1999
respectively are based on misconception
of fact in so far as they direct adjustment
of Ram Prakash against the vacancy
caused by the removal of Srimati Sudha
Yadav. Reference may also be had to the
fact that one Sri Dharam Pal Singh whose
name was included in the list of teachers
entitled for payment of salary after the
institution was brought on the grant-in-aid
list has left the institution and, therefore,
adjustment, if any, of Ram Prakash could
be made against the vacancy caused due
to Sri Dharam Pal having left the
institution.

5. On behalf of the State it is
submitted that the orders passed by the
Director of Education (Basic) dated
29.12.1998 and that passed by the Basic
Shiksha Adhikari in compliance thereof
dated 01.01.1999 have been issued in
compliance of the judgment and order
dated 25.08.1997 passed in the writ
petition filed by Ram Prakash referred to
above. There is no illegality in the said
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1All] Navin Chandra V. Basic Shiksha Adhikari, Etah and others
81
orders and the writ petition is liable to be
dismissed.

6. I have heard learned counsel for
the parties and gone through the record.
It is an undisputed fact that the claim set
up by Ram Prakash for payment of salary
under the grant-in-aid was based on his
right to be included in the list of teachers
entitled for payment of salary under the
U.P. Junior High School (Payment of
Salary to Teachers and other Employees)
Act, 1978, after the institution was
brought on the grant-in-aid list. The said
claim of Sri Ram Prakash has been upheld
by this Court vide judgment and order
dated 25.08.1997 passed in Writ Petition
No. 14467 of 1996. The question of
adjustment of Sri Ram Prakash in such
circumstances against the vacancy which
was caused due to resignation of Srimati
Sudha Yadav is totally uncalled for and
cannot be the basis for refusing salary to
the petitioner. Payment of salary to 5
teachers
was
being
made
without
including the name of Sri Ram Prakash
when the institution was taken on grantin-aid which was a cause for Sri Ram
Prakash to approach this Court by means
of writ petition referred to above.
Therefore, if this Court has upheld the
claim of Sri Ram Prakash for being
included in the list of teachers entitled for
payment of salary from the grant-in-aid
fund, it necessarily means that the
respondents were obliged under law to
sanction one more post of Assistant
Teacher for payment of salary to Sri Ram
Prakash as at the relevant time Sudha
Yadav with other teachers was already on
the list of approved teachers entitled for
salary under grant-in-aid. It is not in
dispute between the parties that Srimati
Sudha Yadav has continued as Assistant
Teacher in her independent right upto the
year 1996 and her continuance was
against the post which was not dependent
in any manner on the claim set up by Ram
Prakash in the aforesaid writ petition. In
the opinion of the Court the payment of
salary to Sri Ram Prakash in such
circumstances is not at all dependent upon
the post which has fallen vacant due to
removal of Srimati Sudha Yadav and
further there is no occasion for adjustment
of Sri Ram Prakash against the vacancy
which has been caused due to removal of
Smt. Sudha Yadav.

7. In view of the above the order
passed by the Director of Education
(Basic) dated 29.12.1998 and the order
dated 01.01.1999 passed by the Basic
Shiksha Adhikari are illegal inasmuch as
they are based on misconception of fact
that Sri Ram Prakash was liable to be
adjusted against the vacancy which has
been caused due to removal of Srimati
Sudha Yadav. It is held that the vacancy
which has been caused due to removal of
Srimati Sudha Yadav is an independent
vacancy which has nothing to do with the
payment of salary to Sri Ram Prakash nor
the right of the petitioner can be defeated
on the ground that Ram Prakash should be
adjusted against the vacancy caused due
to removal of Srimati Sudha Yadav.

8. In view of the aforesaid the writ
petition is allowed. The order passed by
the Director of Education (Basic) dated
29.12.1998
and
the
order
dated
01.01.1999 passed by the Basic Shiksha
Adhikari are quashed. The Zila Basic
Shiksha Adhikari is directed to reconsider the claim of the petitioner for
payment of salary strictly in accordance
with the observations made hereinabove,
within a period of one month from the
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
82
date a certified copy of this order is filed
before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.11.2004

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Writ Petition No. 48967 of 2004

M/s
U.P.
State
Road
Transport
Corporation

...Petitioner
Versus
Ram Prakash and others ...Respondents

Counsel for the Petitioner:
Sri Samir Sharma

Counsel for the Respondents:
S.C.

Payment of Gratuity Act, 1972-S. 7 (7)
read with Limitation Act, 1963-Ss. 29 (2)
and 5-Delay of two years and one month
in filing appeal against order passed for
payment
of
gratuity-Dismissal-Writ
Petition-held, S. 29(2) of Limitation Act
read with S. 7 (7) of payment of Gratuity
Act makes clear that extension under S.
5 of Limitation Act is permissible only for
a period of sixty days-Extension beyond
60 days impliedly excluded-by virtue of
S. 29 (2) of Limitation Act readwith S. 7
(7) of Gratuity Act, Appellate Authority
has no power to extend Limitation
beyond sixty days.

Held: Para 7

By a conjoint reading of Section 29(2) of
the Limitation Act read with Section 7(7)
of the Act, it is clear that extension as
contemplated under Section 5 of the
Limitation Act is permissible only for a
period of sixty days. The extension of the
limitation beyond sixty days has to be
read
as
excluded
by
necessary
implication. By virtue of Section 29(2) of
the Limitation Act read with Section 7(7)
of the Act it has to be learn that there is
no power with the appellate authority to
extend the limitation beyond sixty days.