# Jitendra Kumar Chaudhary v. State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 1562
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-07
- **Case number:** Writ-A No. 6568 of 2018
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-chaudhary-v-state-of-u-p-ors-51297
- **Pages:** 6

## Headnote

Service Law - Intermediate Education Act,
1921
-
U.P.
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 - Code of Criminal
Procedure, 1973 - Sections 125 & 128 -
Protection of Women from Domestic Violence
Act, 2005 - Section 20 - Unauthorized Notice by
District Inspector of Schools - Petitioner
challenged notice dated 29.08.2017 issued by
District Inspector of Schools (DIOS) directing
compliance with Family Court's maintenance
order dated 16.09.2016, threatening salary
deduction - Held, DIOS lacked authority under
Intermediate Education Act, 1921 or Payment of
Salaries Act, 1971 to enforce Family Court's
order or entertain Pvt. complaints for execution
- Execution of maintenance orders under
Section 125 Cr.P.C. governed by Section 128
Cr.P.C., and under Section 20 of Domestic
Violence Act, enforceable by Magistrate, not
DIOS - Regulations 46-52 of Intermediate
Education Act and Section 3 of Payment of
Salaries
Act
prohibit
unauthorized
salary
deductions except as per law or court orders -
Notice per se illegal, quashed - DIOS's
subsequent order dated 08.03.2018 stopping
deduction upheld - Pvt. respondents to pursue
execution before appropriate forum - Petitioner
may seek adjustment of any recovered amount
in maintenance proceedings. (Para 6-11)

Writ petition allowed.

## Text

1562 INDIAN LAW REPORTS ALLAHABAD SERIES
the petitioner moved an application after
more than 11 years and 10 months and
more than 2 years after attaining the age of
majority, meaning-hereby, he had unduly
waited for a very long time. On attaining
the age of majority the petitioner was
eligible to be appointed on Class-IV post
but he chose not to apply at the appropriate
time and took more than 2 years thereafter
to better qualify himself educationally to
procure a job of his choice, which is not
aim and purpose of Rules of 1974.

18. In view of the discussion made
here-in-above, the present writ petition is
devoid of merit and hence, no interference
is required. Therefore, the writ petition is
dismissed.
----------
(2024) 2 ILRA 1562
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.02.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Writ-A No. 6568 of 2018

Jitendra Kumar Chaudhary ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Budhi Ram Gupta, Sri Madan Mohan

Counsel for the Respondent:
C.S.C., Sri Yogendra Singh Bohra

Service Law - Intermediate Education Act,
1921
-
U.P.
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
Other
Employees) Act, 1971 - Code of Criminal
Procedure, 1973 - Sections 125 & 128 -
Protection of Women from Domestic Violence
Act, 2005 - Section 20 - Unauthorized Notice by
District Inspector of Schools - Petitioner
challenged notice dated 29.08.2017 issued by
District Inspector of Schools (DIOS) directing
compliance with Family Court's maintenance
order dated 16.09.2016, threatening salary
deduction - Held, DIOS lacked authority under
Intermediate Education Act, 1921 or Payment of
Salaries Act, 1971 to enforce Family Court's
order or entertain Pvt. complaints for execution
- Execution of maintenance orders under
Section 125 Cr.P.C. governed by Section 128
Cr.P.C., and under Section 20 of Domestic
Violence Act, enforceable by Magistrate, not
DIOS - Regulations 46-52 of Intermediate
Education Act and Section 3 of Payment of
Salaries
Act
prohibit
unauthorized
salary
deductions except as per law or court orders -
Notice per se illegal, quashed - DIOS's
subsequent order dated 08.03.2018 stopping
deduction upheld - Pvt. respondents to pursue
execution before appropriate forum - Petitioner
may seek adjustment of any recovered amount
in maintenance proceedings. (Para 6-11)

Writ petition allowed.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Budh Ram Gupta,
learned counsel for the petitioner, learned
Standing Counsel for the State respondents
and Sri Y.S. Bohra, learned counsel for
respondent nos. 5,6 and 7.

2. The petitioner before this Court is
aggrieved of the notice issued by the
District Inspector of Schools on 29th
August, 2017 whereby he was required to
comply the judgment and order of the
Principal
Judge,
Family
court
dated
16.09.2016 in maintenance case no. 495 of
2008 failing which recovery shall be
proceeded with from his salary.

3. The argument advanced by learned
counsel for the petitioner is that District
Inspector of Schools does not enjoy any
authority to act as an executing authority of
an order of court of law. He submits that as
2 All. Jitendra Kumar Chaudhary Vs. State of U.P. & Ors.
1563
per maintenance law, proper remedy for the
respondent nos. 5,6 and 7 was to apply for
execution before the concerned court to get
judgment and order executed . The District
Inspector of Schools being an education
authority could not have terrorized the
petitioner to comply with directions of the
family court else deduction would be made
from his salary. He submits that power can
be exercised by District Inspector of
Schools
vis-a-vis
an
employee
of
educational
institution
in
terms
of
regulations prescribed for under relevant
chapter of the Intermediate Education Act,
1921. Here there being not a case qua
service or employment otherwise relating
to the petitioner, nor there was any
complaint as such, the District Inspector of
Schools was not even competent to
entertain a private complaint made by of
respondent nos. 5,6 and 7 for the execution
of the judgment of the Principal Judge,
Family Court, Varanasi.

4. Learned Standing Counsel as well
as
learned
counsel
for
the
private
respondent submits that it was a mere
notice to which petitioner could have
offered explanation to the District Inspector
of Schools but they are not in a position to
demonstrate as to under which section and
regulation framed under the Intermediate
Education Act, the District Inspector of
Schools enjoys any such authority to
entertain such application and then to
proceed to take cognizance so as to issue
notice for the execution of an order of a
court of law, not arising out of any contract
of employment or even relating thereto.

5.

Learned
Standing
Counsel
appearing
on
behalf
of
the
State
respondents submits that District Inspector
of Schools later on realized the mistake and
accordingly passed order on 08th March,
2018 stopping the deduction from salary of
petitioner.

6. Having heard learned counsel for
the respective parties and having perused
the records, I find that the Principal Judge,
Family,
Court
Varanasi
passed
the
judgment and order under Section 125 of
the Cr.P.C. and The protection of Women
from Domestic Violence Act, 2005. For
execution of an order passed under Section
125 of Cr.P.C. there is ample provision
contained under Section 128 of Cr.P.C and
therefore, private respondents could have
approached the Court concerned for getting
its order executed under Section 128 of the
Code of Criminal Procedure that runs as
under:

"A
copy
of
the
order
of
maintenance or interim maintenance and
expenses of proceeding, as the case may be
shall be given without payment to the
person in whose favour it is made, or to his
guardian, if any, or to the person to whom
the allowance for the maintenance or the
allowance for the interim maintenance and
expenses of proceeding, as the case may be
is to be paid; and such order may be
enforced by any Magistrate in any place
where the person against whom it is made
may be, on such Magistrate being satisfied
as to the identity of the parties and the nonpayment of the allowance or as the case
may be expenses, due."

(emphasis added)

7. Similarly in respect of order passed
under Section 20 of the The protection of
Women from Domestic Violence Act, 2005
empowers the Magistrate to realized the
amount and ensure that monetary relief is
paid to the complainant. Section 20 of
Domestic Violence Act is reproduced
hereunder:
1564 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Monetary reliefs.-(1) While
disposing of an application under subsection (1) of section 12,the Magistrate
may direct the respondent to pay monetary
relief to meet the expenses incurred and
losses suffered by the aggrieved person and
any child of the aggrieved person as a
result of the domestic violence and such
relief may include, but not limited to,-

(a) the loss of earnings;

(b) the medical expenses;

(c) the loss caused due to the
destruction, damage or removal of any
property from the control of the aggrieved
person; and

(d) the maintenance for the
aggrieved person as well as her children, if
any, including an order under or in
addition to an order of maintenance under
section 125 of the Code of Criminal
Procedure, 1973 (2 of 1974) or any other
law for the time being in force.

(2) The monetary relief granted
under this section shall be adequate, fair
and reasonable and consistent with the
standard of living to which the aggrieved
person is accustomed.

(3) The Magistrate shall have the
power to order an appropriate lump sum
payment
or
monthly
payments
of
maintenance,
as
the
nature
and
circumstances of the case may require.

(4) The Magistrate shall send a
copy of the order for monetary relief made
under sub-section (1) to the parties to the
application and to the in charge of the
police station within the local limits of
whose jurisdiction the respondent resides.

(5) The respondent shall pay the
monetary relief granted to the aggrieved
person within the period specified in the
order under sub-section (1).

(6) Upon the failure on the part
of the respondent to make payment in
terms of the order under sub-section (1),
the Magistrate may direct the employer or
a debtor of the respondent, to directly pay
to the aggrieved person or to deposit with
the court a portion of the wages or
salaries or debt due to or accrued to the
credit of the respondent, which amount
may be adjusted towards the monetary
relief payable by the respondent."

(Emphasis added)

8. From the relevant provisions
framed under Chapter II and III of the
Intermediate Education Act, 1921, I do not
find any provision in existence to permit
the District Inspector of schools to have
taken cognizance of such matter. Chapter II
deals with appointment vide its Section
16E, 16 F and 16FF and qualification
prescribed under its Appendix 'A' and
Chapter III deals with conditions of service
of employees of such recognized and aided
institution read with regulation contained
under said Chapter. Regulation 46 to 52
provides for regular payment of salary to
the employees without any deduction by
the competent authority and the employee
shall also be conferred upon with the
benefit of the annual increments which
shall not be stopped unless an employee
visited with punishment withholding the
same. Regulation 46 to 52, which are
relevant for the purpose are reproduced
hereunder:

"46. Employees shall be allowed
the scale of pay sanctioned by the State
Government from time to time.

47. The pay of an employee on his
first joining service in an institution shall
be fixed at the Initial stage of the time-scale
attaching to his post: Provided that if he
has served previously in another institution
and earned increments, he may be given the
benefit of such increments under conditions
laid
down
by
Government
or
the
2 All. Jitendra Kumar Chaudhary Vs. State of U.P. & Ors.
1565
regulations. Provided further that advance
increments may be allowed in special cases
with the prior approval of Government.

48. On promotion to a higher post
the initial pay of an employee will be fixed
at the minimum of the new scale if his pay
is less than his minimum otherwise at the
stage of the new time. scale next above his
pay.

49. The Committee will pay the
salary of an employee for a month by the
15th day of the following month.

50. The payment of salary will be
made in cash or by cheque. If an employee
desires regular payment to be made by
cheque instead of in cash necessary
arrangements shall be made by the
Committee, provided banking facilities are
locally available, on receiving his salary by
cheque or in cash, the employee shall sign
the acquaintance oll duly stamped (if
necessary) in token of such payment.

51. संस्था में स्थािाप्ि अथवा मौप्रलक रूप से की
गयी अप्रवरल सेवा, वेति के कालमाि एवं वाप्रर्षक वेति वृप्रद्ध के
प्रलए संगप्रणत की जायेगी, िप्रति्र् यह है प्रक कमषिारी की ग्राह्य से
अप्रर्क प्रििा वेति के अवकाश की अवप्रर् अथवा प्रिप्रकत्सीय
आर्ार अथवा प्रिजी कायष पर प्रलये गये अवकाश की अवप्रर् के
प्रलये वेति वृप्रद्ध देय िहीं होगी। प्रकसी प्रवशेर् वर्ष में अवकाश की
अवप्रर् में पडिे वाली वेति वृप्रद्ध की प्रतप्रथ उस प्रतप्रथ तक स्थप्रगत
कर दी जायेगी, प्रजसको कमषिारी अवकाश की समाप्रि पर कायषिार
ग्रहण करता है। अध्यापक वेति की प्रतप्रथ के दो माह पूवष प्रशक्षा
प्रिदेशक द्वारा प्रिर्ाषररत स्वमूल्यांकि िपत्र पर सूििायें िरकर
िर्ािािायष के माध्यम से िि्र् तंत्र को देगा। िि्र् त्त्र आवश्यक
अप्रिलेख प्रजसे वह उप्रित समझे, मांगेगा तथा वेति वृप्रद्ध समय से
अिुम्य प्रकये जािे हेतु िर्ािािायष, अध्यापक को प्रिदेश देगा। यप्रद
वेति वृप्रद्ध की प्रतप्रथ तक कोई प्रिदेश िहीं देता तो माि प्रलया जायेगा
प्रक अिुमप्रत दे दी गई है।

52. कमषिारी को वेति के कालमाि में वाप्रर्षक वेति
वृप्रद्धयों ग्राह्य होगी, जि तक प्रक उसकी वेति वृप्रद्धयााँ रोकिे का
दण्ड िहीं प्रदया जाता है अथवा वह दक्षतारोक पर प्रिरुद्ध िही प्रकया
जाता
है।
ऐसे प्रकसी कमषिारी को वेति वृप्रद्ध ग्राह्य िहीं होगी अथवा उसकी
दक्षता रोक पार िहीं की जायेगी, प्रजसे सावषजप्रिक परीक्षाओं में िश्नपत्रों को प्रिर्ाषररत समय के पूवष िकाप्रशत (िकप्रटत) करिे अथवा
करािे में ित्यक्ष या परोक्ष रूप से सहायक होिे अथवा पररर्द
परीक्षाओं में परीक्षाथी/परीक्षाप्रथषयों को िकल करिे अथवा िकल
करािे में ित्यक्ष या परोक्ष रूप से सहायक होिे अथवा अिुप्रित
सार्ि के ियोग के िकरणों से संिंप्रर्त अवैर् सामग्री िि करिे
अथवा िकरण को दिािे अथवा प्रजला िशासि तथा प्रशक्षा प्रविाग
के अप्रर्काररयों अथवा सिल दलों के प्रिरीक्षण कायष में िार्ा डालिे
तथा उिके साथ प्रहंसा, मारपीट करिे अथवा संकलि/मूल्यांकि
के्रों से उत्तर पुस्तकों के गायि होिे अथवा जाििूझ कर गायि
प्रकये जािे अथवा उत्तर पुस्तकों में प्रकसी िी िकार की हेरा-िेरी
करिे अथवा परीक्षा संिालि में प्रकसी िी िकार लापरवाही िरतिे
आप्रद अप्रियप्रमतताओं के आरोप में दोर्ी पाया गया हो।"

9. Similarly under the Uttar Pradesh
High Schools and Intermediate Colleges
(Payment of Salaries of Teachers and Other
Employees) Act, 1971, there is no power
vested with the District Inspect of Schools
to make deductions from the salary unless
there is an order by the competent court of
law directing for any recovery or deduction
from the salary. Section 3 of the payment of
Salaries Act, 1971 for appreciation of what
has been observed above, is reproduced
hereunder:

"3. Payment of salary within
time and without unauthorised deduction.
- (1) Notwithstanding any contract to the
contrary, the salary of a teacher or other
employee of an institution in respect of any
period after the thirty-first day of March,
1971 shall be paid to him before the expiry
of the twentieth day, or such earlier day as
the State Government may, by general or
special order in that behalf appoint, of the
month next following the month in respect
of which or any part of which it is payable.

(2) The salary shall1 [subject to
the provisions of sub-section (3), be paid
without deduction of any kind except
those authorised by the regulations or by
any rules made under the Act or by any
other law for the time being in force.
1566 INDIAN LAW REPORTS ALLAHABAD SERIES

[(3) Where the salary of a teacher
employee of an institution is not paid in
accordance with sub-section (1) due to any
default on the part of the management, the
Inspector may, without prejudice to any
other provision of this Act, pay or cause to
be paid within ten days from the date
mentioned in sub-section

(1)
of
Section 4 at the rate of salary last drawn by
such teacher or employee as the case may
be, and in case fresh appointment at the
rate of the minimum of the pay scale in
which he has been appointed and any
adjustment in respect of such payment shall,
thereafter be made as soon as possible."

(emphasis added)

10. As a matter of fact vide Section 6 of
the said Act duty has been cast upon the
District Inspector of Schools to ensure
enforcement of the provisions and directions
issued under this Act of 1971. Section 6 of
the Act is reproduced hereunder:

"6. Enforcement of provisions and
directions. - (1) Where the Inspector, on the
basis of an inspection of an institution or its
records or otherwise, is satisfied that its
management has committed default in
complying with any direction given under
Section 4 or with any provisions of Section 3
or Section 5, he may recommend to the
Regional Deputy Director, Education, that
action be taken against the institution under
sub-section (2).

(2)
On
receipt
of
a
recommendation under sub-section (1) the
Regional Deputy Director, Education, may
call upon the management to comply with the
said direction or provisions or to show cause
with a weeks why the management should not
be suspended.

(3) Where the management fails to
comply as aforesaid or to show cause, or the
Regional
Deputy
Director,
Education,
considers the cause shown to be insufficient,
he may by order supersede the management
for such period not exceeding one year as
may be specified in the Order, and authorise
any person (hereinafter referred to as
Authorised Controller) to take over the
management of the institution for the said
period :

Provided that the Regional Deputy
Director, Education, may where he considers
it necessary or expedient so to do, -

(i) extend the said period, from
time to time, so however, that the period so
extended does not exceed five years in the
aggregate; or

(ii) revoke the order at any time :

Provided further that nothing in
clause (ii) of the preceding proviso shall bar
the passing of a fresh order under this
section.

(4) On an order being made under
sub-section (3) the Authorised Controller
shall, to the exclusion of the management and
subject only to the Direction, the Director or
the State Government, exercise all the powers
and perform all the functions of the
management, including management of the
property belonging to or vested in the
institution and in particular, operate singly
the bank account referred to in Section 5 :

Provided that nothing in this
section shall be construed to confer on the
Authorised Controller the power to transfer
any such property (except by way of letting
from month to month in the ordinary course
of management) or to create any charge
thereon (except as a condition of receipt of
any grat-in-aid of the institution from the
State Government).

(5) Any order made or direction
given under this Section shall have effect
notwithstanding
anything
inconsistent
therewith
contained
in
any
other
enactment or instrument relating to the
management and control of the institution
2 All. Israr Ali Vs. State of U.P. & Ors.
1567
(including any scheme of administration)
or relating to the property belonging to or
vested in the institution."

(emphasis added)

11. In view of above, the District Inspector
of Schools could not have entertained such
application and, therefore, notice issued to the
petitioner dated 29.08.2017 is held per se bad. The
Court finds that District Inspector of Schools has
stayed the recovery by its order dated 8th March,
2018 and that he has rightly done so.

12. In view of above, writ petition succeeds
and is allowed. The order of notice dated
29.08.2017 issued by the District Inspector of
Schools is hereby quashed. However, leaving it
open for the contesting private respondent nos, 6,7
and 8 to pursue the remedy by moving appropriate
application before appropriate forum. Regarding
already recovered amount, it will be open for the
petitioner to get it adjusted against maintenance
amount, which he was liable to be pay under the
order passed by the Principal Judge, Family Court,
in appropriate proceedings.
----------
(2024) 2 ILRA 1567
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE J.J.MUNIR, J.

Writ-A No. 19152 of 2021

Israr Ali ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shamim Uddin Khan

Counsel for the Respondent:
C.S.C., Sri Manoj Kumar Srivastava

A. Service Law - UP Power Corporation's
order dated 05.07.2011 - Honorarium -
Entitlement of regularly appointed driver
- St. denied payment on the ground that
the work of a driver was done through an
outsourcing agency as the petitioner was
seriously ill - Mandamus sought - Held,
mere fact that a person has suffered a
medical condition related to the heart or
his lungs, for which he has received
treatment, cannot ipso facto lead to a
conclusion that he has become disabled to
function as a driver - There is, thus, no
basis or warrant for this Court to infer that
the petitioner, during the relevant period
of nine years, has not been performing the
duties of a driver so as to disentitle him to
honorarium during every financial year,
equivalent to his basic pay, in accordance
with
the
Corporation's
order
of
05.07.2011. (Para 15 and 16)

Writ petition allowed. (E-1)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition has been
instituted by the petitioner, praying that a
mandamus
be
issued,
ordering
the
Superintending Engineer, Electricity Works
Division, Purvanchal Vidyut Vitran Nigam
Limited, Prayagraj, to pay arrears of salary
due to the petitioner on account of his
entitlement to receive the equivalent of one
month's basic pay every year of his service
as honorarium, in accordance with the UP
Power Corporation's order dated 5th July,
2011, making provision in that behalf for
regular drivers.

2. The short case of the petitioner is
that he was a permanent driver in the
employ of the UP Power Corporation Ltd.
(for short, 'the Corporation') and working
under the immediate control of the
Purvanchal Vidyut Vitran Nigam Limited,
Vidyut
Madhyamik
Karya
Khand,
Prayagraj. He retired from service on