# Madhopur, Kasia, Tehsil Kasia, Dist. Kushinagar & Anr v. State of U.P. & Ors. 656 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2022) 9 ILRA 655
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-08-16
- **Case number:** Writ-A No. 11943 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhopur-kasia-tehsil-kasia-dist-kushinagar-anr-v-state-of-u-p-ors-656-indian-49097
- **Pages:** 4

## Headnote

Law
-
Grant-in-aid
-
Payment
of
salary
of
teachers
-
Constitution of India: Article 14 - State
Government is adopting a pick and choose
policy in taking the institutions under
grant-in-aid and the action is clearly
violative of Article 14 of the Constitution
of India. Petitioners have invited attention of
the Court to orders dated 21.11.2019 and
16.10.2020 by which the State Government has
taken institution in grant-in-aid which are
similarly circumstanced and governed by Social
Welfare Department. (Para 4)

Rejection of the claim of the petitioners in the facts
and circumstances is totally unwarranted. The case
of the petitioners is not to be treated as a new
case. The State Government has vide order dated
18.5.2017 already taken a decision to take the
petitioners' Institution under grant-in-aid. The said
order is very much in existence and has not been
rescinded.
Admittedly,
vide
orders
dated
21.11.2019 and 16.10.2020, the State Government
has taken institutions in grant-in-aid which are
similarly
circumstanced
as
the
petitioners'
institution and governed by the Social Welfare
Department. There is no reason for the State
Government to discriminate against the petitioners
and refuse the financial approval having granted
the administrative approval as far back as on
18.5.2017. (Para 3 to 6)

Writ petition allowed. (E-4)

Precedent followed:

## Text

9 All. C/M Harijan Primary Pathshala, Madhopur, Kasia, Tehsil Kasia, Dist. Kushinagar & Anr.
 Vs. State of U.P. & Ors.
655
In reply thereto it is submitted that the action
has been taken against the petitioner. It is
further submitted that due to confrontation
between
teachers
association
and
the
petitioner
for
smooth
functioning
of
departmental works, the petitioner has been
repatriated to his parent department of
Madhyamik Shiksha, U.P. in accordance with
law. It is further submitted that normally
tenure of deputation is 03 years, however,
under special facts and circumstances as well
as keeping in view of work interest the tenure
of deputation of an employee can be curtailed
and the power of the repatriation of an
employee on deputation before the prescribed
tenure is vested in the answering respondent
no.2."

14. From the said paragraphs, it is apparent
that the petitioner has not been afforded any
opportunity of hearing before passing the
impugned order, which is totally malafide.

15. Paragraph 32 of the said judgement
relied upon by counsel for the petitioner in
Union of India Through Govt. of Pondicherry
and Another (supra), is quoted as under:

"Ordinarily, a deputationist has no
legal right to continue in the post. A deputationist
indisputably has no right to be absorbed in the
post to which he is deputed. However, there is no
bar thereto as well. It may be true that when
deputation does not result in absorption in the
service to which an officer is deputed, no
recruitment in its true import and significance
takes place as he is continued to be a member of
the parent service. When the tenure of deputation
is specified, despite a deputationist not having an
indefeasible right to hold the said post, ordinarily
the term of deputation should not be curtailed
except on such just grounds as, for example,
unsuitability or unsatisfactory performance. But,
even where the tenure is not specified, an order
of reversion can be questioned when the same is
mala fide. An action taken in a post haste
manner also indicates malice."

16. In view of the above, it is clear that the
impugned order has been passed against the
petitioner without affording any opportunity of
hearing and cannot be sustained being stigmatic
and is malafide.

17. Accordingly, the impugned order dated
27.11.2021 passed by the respondent no.2-State
Project Director, Sarva Shiksha Abhiyan, State
Project Office, Vidya Bhawan, Nishatganj,
Lucknow, is quashed. The respondents are
directed to pass fresh order in accordance with
law after giving adequate opportunity of hearing
to the petitioner and after serving a copy of the
complaint lodged by the political worker.

18. Till such order is passed, the petitioner
would be permitted to work on the post of
District Co-ordinator (Community Mobilization)
in the office of District Basic Education Officer,
Ballia and shall be paid arrears of salary, if any,
and to pay salary month to month basis
regularly.

19. The writ petition is, accordingly,
allowed.
----------

(2022) 9 ILRA 655
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.08.2022

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 11943 of 2022

C/M
Harijan
Primary
Pathshala,
Madhopur,
Kasia,
Tehsil
Kasia,
Dist.
Kushinagar & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
656 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioners:
Sri Adarsh Bhushan, Sri Awadh Narain Rai

Counsel for the Respondents:
C.S.C.

A.
Education
Law
-
Grant-in-aid
-
Payment
of
salary
of
teachers
-
Constitution of India: Article 14 - State
Government is adopting a pick and choose
policy in taking the institutions under
grant-in-aid and the action is clearly
violative of Article 14 of the Constitution
of India. Petitioners have invited attention of
the Court to orders dated 21.11.2019 and
16.10.2020 by which the State Government has
taken institution in grant-in-aid which are
similarly circumstanced and governed by Social
Welfare Department. (Para 4)

Rejection of the claim of the petitioners in the facts
and circumstances is totally unwarranted. The case
of the petitioners is not to be treated as a new
case. The State Government has vide order dated
18.5.2017 already taken a decision to take the
petitioners' Institution under grant-in-aid. The said
order is very much in existence and has not been
rescinded.
Admittedly,
vide
orders
dated
21.11.2019 and 16.10.2020, the State Government
has taken institutions in grant-in-aid which are
similarly
circumstanced
as
the
petitioners'
institution and governed by the Social Welfare
Department. There is no reason for the State
Government to discriminate against the petitioners
and refuse the financial approval having granted
the administrative approval as far back as on
18.5.2017. (Para 3 to 6)

Writ petition allowed. (E-4)

Precedent followed:

1. St. of U.P. & ors. Vs Pawan Kumar Dwivedi &
ors., 2014 (9) SCC 692 (Para 2)

2. Paripurna Nand Tripathi & anr. Vs St. of U.P. &
ors., Special Appeal Defective No. 994 of 2014
(Para 2)

Present
petition
assails
order
dated
17.12.2020, passed by Principal Secretary,
Social Welfare Department, Government
of U.P.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. The writ petition has been filed
questioning the order dated 17.12.2020
(Annexure-26) to the writ petition passed
by the Principal Secretary, Social Welfare
Department, Government of U.P., whereby
refusing to accord financial approval for
the petitioners' school to be included in the
recurrent grant-in-aid list in the absence of
any policy/arrangement existing for taking
new
schools
run
by
the
private
management in the recurrent grant list.
However, the petitioners have been given
liberty to apply as per prescribed procedure
under scheme floated by the Ministry of
Social
Justice
and
Empowerment,
Government of India under which grants
are
being
made
to
residential/nonresidential
schools
through
voluntary
organizations.

2. Shri Adarsh Bhushan, leaned
counsel for the petitioner contends that the
petitioner Committee of Management is
running an Institution providing primary
education from 1st to 5th classes. The
permanent recognition to the petitioners'
Institution was granted on 5.2.1990. The
Institution is governed by Department of
Social Welfare, Government of U.P. The
Social Welfare Department has issued a
Government
Order
dated
31.3.1994
regarding grant and release of grant-in-aid
to basic institutions governed by the Social
Welfare Department. The petitioner had
earlier approached this Court by means of
Writ Petition (C) No. 50838 of 2010. The
said writ petition was disposed of by
directing the authority concerned to take an
appropriate decision regarding bringing the
9 All. C/M Harijan Primary Pathshala, Madhopur, Kasia, Tehsil Kasia, Dist. Kushinagar & Anr.
 Vs. State of U.P. & Ors.
657
petitioners' Institution under the grant-inaid. The claim came to be rejected by the
State
Government
vide
order
dated
22.2.2011 on the ground that the scheme of
the State itself had been discontinued w.e.f.
5.10.2006. The rejection order dated
22.12.2011 was challenged by means of
Writ Petition (C) No. 31825 of 2015. This
Court vide order dated 3.10.2016 allowed
the writ petition, set aside the order
rejecting the claim dated 22.12.2011 and
directed the State Government to examine
the petitioners' claim for being taken on the
list of aid keeping in view the observations
made by the Apex Court in State of U.P.
and others versus Pawan Kumar Dwivedi
and others reported in 2014 (9) SCC 692 as
well as the Division Bench decision of this
Court in Paripurna Nand Tripathi and
another versus State of U.P. and 20
others, Special Appeal Defective No. 994
of 2014.

3. The State Government in compliance
of the order of this Court dated 3.10.2016
passed an order dated 18.5.2017 taking the
petitioners' Institution in grant-in-aid. However,
in spite of the order dated 18.5.2017 passed in
favour of the petitioners the grants were not
released in favour of the petitioners in spite of
the fact that the petitioners complied with all the
formalities required from it. The petitioners
were compelled to approach this Court yet
again by means of Writ Petition (A) No. 14997
of 2019 which too was disposed of vide order
dated 21.10.2019 requiring the authority
concerned to pass final order for payment of
salary of teachers taking into consideration the
letters dated 3.5.2019 and 10.5.2019. It was
further directed that in case there is any legal
impediment, the authority concerned shall pass
a reasoned order.

4. Learned counsel for the petitioner
submits that against the order dated
3.10.2016 passed in Writ-C No. 31825 of
2015, the State Government had filed SLP
(Civil) Diary No. 1252 of 2021 before the
Apex Court, which was dismissed vide
order dated 27.8.2021 and as such, the
order dated 3.10.2016 setting aside the
rejection of the claim of the petitioners to
be brought under the grant-in-aid having
been upheld, it was incumbent upon the
State Government to accord financial
approval.
Learned
counsel
for
the
petitioners further contends that the State
Government is adopting a pick and choose
policy in taking the institutions under
grant-in-aid and the action is clearly
violative of Article 14 of the Constitution
of India. The learned counsel has invited
attention of the Court to orders dated
21.11.2019
and
16.10.2020
filed
as
Annexures 30 & 31 to the writ petition by
which the State Government has taken
institution
in
grant-in-aid
which
are
similarly circumstanced and governed by
Social Welfare Department.

5.

Learned
Standing
Counsel
appearing for the State-respondents has
tried to justify the impugned order by
submitting that in the absence of any
existing policy of the State Government to
take
new
schools
run
by
private
management and include them in the
recurrent grant list, the impugned order is
perfectly justified. However, he is unable to
refute
the
argument
that
similarly
circumstanced institutions have been taken
under the grant-in-aid as is evident from the
orders dated 21.11.2019 and 16.10.2020
which are on record.

6. Having considered the submissions
of the learned counsel for the parties and
having perused the materials on record, the
Court finds that the rejection of the claim
of the petitioners in the facts and
658 INDIAN LAW REPORTS ALLAHABAD SERIES
circumstances is totally unwarranted. The
case of the petitioners is not to be treated as
a new case. The State Government has vide
order dated 18.5.2017 (Annexure-15 to the
writ petition) already taken a decision to
take the petitioners' Institution under grantin-aid. The said order is very much in
existence and has not been rescinded.
Admittedly, vide orders dated 21.11.2019
and 16.10.2020 (Annexures 30 & 31), the
State Government has taken institutions in
grant-in-aid
which
are
similarly
circumstanced as the petitioners' institution
and governed by the Social Welfare
Department. There is no reason for the
State Government to discriminate against
the petitioners and refuse the financial
approval having granted the administrative
approval as far back as on 18.5.2017.

7. In view of the above, the writ
petition succeeds and is allowed. The order
dated 17.12.2020 passed by the State
Government (Annexure 26 to the writ
petition) is set aside. A writ of mandamus
is issued to the respondents to accord
financial approval and release the grant for
payment of salary to the teaching and non
teaching staff of the petitioners' institution
by passing appropriate orders in this regard
within a period of 45 days from service of
certified copy of the orders.
----------
(2022) 9 ILRA 658
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.08.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application U/S 482 No. 24962 of 2021

Shivam Solanki ...Applicant
Versus
The State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Chandrachud Pandey, Sri Sunil Gupta,
Sri Anil Kumar Srivastava, Sr. Adv.

Counsel for the Respondents:
Govt. Advocate, Sri Ishir Sripat

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 482 - Indian
Penal Code, 1860-Sections 323, 504, 506,
427, 386, 376, & 511-Challenge to-charge
sheet
and
summoning
order-
NonCompliance of section 155(2) Cr.P.C.-No
consistency in the version of informant
starting from lodging of the NCR till the
submission of chargesheet-Only in the
statement u/s 164 Cr.P.C., victim, for the
first time, raised her grievance regarding
allegation of attempt of being sexually
assaulted-The police officer investigated
the
matter
without
following
the
procedure as mandated u/s 155(2) of
Cr.P.C.-Moreso, the testimony of the
victim was not of sterling quality to
believe
allegations
made
against
applicant-Though the NCR was lodged but
the entire proceedings were initiated
without taking prior permission of the
concerned Magistrate u/s 155(2) Cr.P.C.,
the
whole
investigation
against
the
applicant is illegal-It is settled proposition
that if the initial action is not in
consonance with law, all subsequent and
consequential
proceedings
would
be
vitiated-Thus, the entire proceedings is
liable to be quashed.(Para 1 to 26)

B. When a non-cognizable offence is
reported to the police, they are not
empowered to investigate the matter and
register an FIR, without compliance of
Section
155(2)
of
Cr.P.C.
without
obtaining
prior
permission
of
the
Magistrate concerned. It is only after
referring the complaint to the concerned
Magistrate
and
taking
permission,
thereafter,
they
can
investigate
the
matter. The statutory safeguards must be
strictly followed, since they are conceived
in public interest and as a guarantee