# Smt. Dharmraji Devi Ganga Prasad Singh Uchchatar Madhyamik Vidyalaya, Khuiri, Jaunpur & Anr v. State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 1643
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-04
- **Case number:** Special Appeal No. 873 of 2019
- **Bench:** Biswanath Somadder, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-dharmraji-devi-ganga-prasad-singh-uchchatar-madhyamik-vidyalaya-khuiri-45553
- **Pages:** 5

## Headnote

Sri A.K. Roy, C.S.C., Sri Kailash Singh
Kushwaha

A. Service - Uttar Pradesh High Schools
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
other
Employees), Act, 1971: Sections 3(3), 4,
5, 6, 10(1), 11; Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees), Rules, 1993 - The
responsibility
for
ensuring
submission
of
necessary papers for the purposes of payment
of salaries of teachers and other employees is
of the management of the Institution and when
a default in the aforesaid has been recorded,
management is the only body which could have
filed the writ petition and not the Principal of
the institution.

Appeal dismissed.

Precedent mentioned:

Committee
of
Management,
Gangabux
Kanauriya Gandhi Inter College, Deoria Vs.
Deputy Director of Education, Seventh
Region Gorakhpur and others, 2000 (3) ALR
314 (Para 5)

## Text

2 All. Smt. Dharmraji Devi Ganga Prasad Singh Uchchatar Madhyamik Vidyalaya, Khuiri, Jaunpur & Anr. & Vs. State of U.P. & Ors.
1643
deal with an identical issue of the right of
a married daughter to be considered under
the Dying-in-Harness Rules observed that
a married daughter is a part of the family
of her husband and could not therefore be
expected to continue to provide for the family
of the deceased government servant. The
judgment proceeds on the premise that
marriage severs all relationships that the
daughter may have had with her parents. In
any case it shuts out the consideration of the
claim of the married daughter without any
enquiry on the issue of dependency. In the view
that we have taken we are unable to accept or
affirm the reasoning of the learned Single
Judge and are constrained to hold that Mudita
does not lay down the correct position of the
law.

In conclusion, we hold that the
exclusion of married daughters from the ambit
of the expression "family" in Rule 2 (c) of the
Dying-in-Harness
Rules
is
illegal
and
unconstitutional, being violative of Articles 14
and 15 of the Constitution.

We, accordingly, strike down the
word 'unmarried' in Rule 2 (c) (iii) of the
Dying-in-Harness Rules.

In consequence, we direct that the
claim of the petitioners for compassionate
appointment shall be reconsidered. We clarify
that the competent authority would be at
liberty to consider the claim for compassionate
appointment on the basis of all the relevant
facts and circumstances and the petitioners
shall not be excluded from consideration only
on the ground of their marital status."

4. Accordingly, the learned Single Judge
allowed the writ petition and directed the
competent authority to consider the claim of
the
writ
petitioner-respondent
for
compassionate appointment.

5. The appellants have approached this
Court by way of filing the present special
appeal against the judgment passed by the
learned Single Judge.

6. Learned counsel appearing on behalf
of the respondent at the outset pointed out that
the relied upon judgment was challenged by
the State of U.P. before the Apex Court and the
Apex Court vide order dated 23.7.2019 passed
in Special Leave to Appeal Civil No.22646 of
2016 and connected matters has dismissed the
special leave to appeal.

7. We have perused the impugned
judgment as well as the relied upon judgment.

8. The learned Single Judge has rightly
followed the judgment passed by the Division
Bench of this Court in the matter of Vimla
Srivastava (supra) and now it has been
brought on record that the said judgment has
been upheld by the Apex Court also, therefore,
we do not find any reason to interfere with the
order passed by the learned Single Judge.

9. Accordingly, this special appeal is
dismissed.
----------
(2020)02ILR A1643

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.02.2020

BEFORE
THE HON'BLE BISWANATH SOMADDER, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 873 of 2019

Smt. Dharmraji Devi Ganga Prasad Singh
Uchchatar Madhyamik Vidyalaya, Khuiri,
Jaunpur & Anr. ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
1644 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Radha Kant Ojha, Sri Ali Hasan

Counsel for the Respondents:
Sri A.K. Roy, C.S.C., Sri Kailash Singh
Kushwaha

A. Service - Uttar Pradesh High Schools
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
other
Employees), Act, 1971: Sections 3(3), 4,
5, 6, 10(1), 11; Uttar Pradesh High
Schools
and
Intermediate
Colleges
(Payment of Salaries of Teachers and
other Employees), Rules, 1993 - The
responsibility
for
ensuring
submission
of
necessary papers for the purposes of payment
of salaries of teachers and other employees is
of the management of the Institution and when
a default in the aforesaid has been recorded,
management is the only body which could have
filed the writ petition and not the Principal of
the institution.

Appeal dismissed.

Precedent mentioned:

Committee
of
Management,
Gangabux
Kanauriya Gandhi Inter College, Deoria Vs.
Deputy Director of Education, Seventh
Region Gorakhpur and others, 2000 (3) ALR
314 (Para 5)

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Radha Kant Ojha,
learned Senior Counsel, assisted by Sri Ali
Hasan, learned counsel for the appellants,
Sri Kailash Singh Kushwaha, learned
counsel for the sixth respondent/caveator
and Sri A.K. Roy, learned Additional
Chief Standing Counsel appearing for the
State-respondents.

2. The present Special Appeal has
been filed against the judgment and order
dated
23.07.2019
passed
in
Writ-A
No.10710 of 2019 (Smt. Dharmraji Devi
Ganga
Prasad
Singh
Uchchatar
Madhyamik Vidyalaya And Another Vs.
State of U.P. and 5 others), whereby the
writ petition has been dismissed by
assigning the reason that the same had
been filed by a person not competent to
file the petition. The learned Single Judge
has, however, granted liberty to the
Committee
of
Management
of
the
petitioner institution to file a writ petition.

3. The judgment passed by the writ
court is sought to be assailed principally
on the ground that since the dispute
involved in the case related to a Class-IV
employee in the petitioner institution, it
was not correct to say that the writ petition
could be filed only by the Committee of
Management and not by the Principal of
the institution.

4. In this regard, the learned Senior
Counsel appearing for the appellant has
sought to draw attention of this Court to
the
provisions
contained
under
the
Intermediate Education Act, 19211 and the
Regulations framed thereunder, to submit
that as per the statuary frame work, it is
the Principal of the institution, who is
solely
responsible
and
has
all
the
necessary powers with regard to the
appointment, promotion and punishment
of a Class-IV employee and that it is only
in respect of teachers and employees other
than Class-IV employees that the power
with regard to the aforesaid matters vests
with the Committee of Management.

5. The learned Senior Counsel has
also pointed out that the decision of this
Court in the case of Committee of
Management,
Gangabux
Kanauriya
Gandhi
Inter
College,
Deoria
Vs.
Deputy Director of Education, Seventh
Region Gorakhpur and others2, which
2 All. Smt. Dharmraji Devi Ganga Prasad Singh Uchchatar Madhyamik Vidyalaya, Khuiri, Jaunpur & Anr. & Vs. State of U.P. & Ors.
1645
has been relied upon in the judgment
under appeal, was a case where the
educational authority had refused to
accord approval to the management's
decision to terminate the services of a
person who was working as a teacher in
the institution in question. Contention of
the learned Senior Counsel is that taking
notice of the fact that under the relevant
regulations it was the Committee of
Management which was the appointing
authority, the appeal filed before the
Deputy Direction of Education having
been preferred in the name of the College,
was held not to be an appeal in the eyes of
law and for the said reason, the Court had
refused to exercise its jurisdiction under
Article 226 of the Constitution of India.

6. Per contra, learned counsel
appearing for the sixth respondent and
learned Additional Chief Standing Counsel
for the State-respondents submit that in the
instant case the writ petition has been
preferred
against
an
order
dated
28.03.2019
passed
by
the
District
Inspector of Schools, Jaunpur3, exercising
powers under Section 3(3) of the Uttar
Pradesh High Schools and Intermediate
Colleges (Payment of Salaries of Teachers
and
other
Employees),
Act,
19714,
whereunder the responsibility with regard
to payment of salaries is that of the
management, and accordingly, it was only
the Committee of Management which
could have challenged the said order. It
has been pointed out that the matter does
not relate to either the appointment or
initiation of any disciplinary proceedings
against a Class-IV employee, and as such,
the assertion on behalf of the appellant that
the Principal of the institution was
competent to prefer the writ petition, had
rightly been turned down by the learned
Single Judge.

7. The record of the case indicates
that the principal grievance sought to be
raised in the writ petition was against the
order dated 28.03.2019 passed by the
DIOS, which is an order passed in exercise
of powers conferred under sub-section (3)
of Section 3 of the Act, 1971, which
empowers the DIOS to ensure payment of
salary of a teacher or employee, in case of
any default on part of the management.

8. A plain reading of the aforesaid
order which was sought to be challenged
in the writ petition indicates that despite
earlier directions having been issued to the
management for submission of salary bill
of the sixth respondent (a Class-IV
employee), the management had defaulted
and
consequently
a
notice
dated
27.03.2019 was issued to the Committee
of Management and it was subsequent
thereto that the DIOS proceeded to pass
the order dated 28.03.2019 in exercise of
powers conferred under sub-section (3) of
Section 3 of the Act, 1971.

9. The Uttar Pradesh High Schools
and Intermediate Colleges (Payment of
Salaries
of
Teachers
and
others
Employees), Act, 1971 was enacted to
regulate the payment of salaries to teachers
and other employees of High Schools and
Intermediate Colleges, receiving aid out of
State funds and to provide for matters
connected therewith. The object of the Act
is to secure regular and prompt payment of
salaries to teachers and other employees of
the
High
Schools
and
Intermediate
Colleges in the State and for the said
purpose the machinery and procedure to
regulate the payment has been provided in
the Act itself.

10. In terms of sub-section (1) of
Section 10 of the Act 1971, a duty is cast
1646 INDIAN LAW REPORTS ALLAHABAD SERIES
upon the State Government for payment of
salaries of teachers and employees of
every institution which is recognized
under Intermediate Education Act, 1971
and is receiving maintenance grant from
the State Government. The procedure for
payment of salaries is provided for under
Section 5 which inter alia provides for the
operation of a separate account to be
opened jointly by a representative of the
management and by the inspector or such
other officer as may be authorized by the
inspector in that behalf for the purposes of
disbursement of salaries of the teachers
and employees of the institution in
question.

11. Section 3 of the Act, 1971,
provides for payment of salary within time
and without unauthorized deduction and
under sub- section (3) thereof the DIOS
has been saddled with the statutory duty of
ensuring payment of salary of teachers and
other
employees
of
a
recognized
institution within a prescribed time frame.
It also provides for the contingency that in
case of any default on part of the
management, the Inspector may take
necessary steps for ensuring the payment
of salary.

12. For ease of reference, Section 3
of the Act, 1971 is being extracted herein
below:-

"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 thirtyfirst 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 shall 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.

(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."

13. In terms of Section 4 of the Act,
1971, the Inspector is empowered to make
inspection of the institution with regard to
payment of salaries and in case of any
default by the management adequate
measures
for
enforcement
of
the
provisions and directions under the Act
have been provided for under Section 6 of
the said Act.

14. Under Section 11, punishment
and penalties have also been provided, in
case of default committed by manager or
any other person vested with the authority
to manage and conduct the affairs of the
institution,
in
complying
with
the
provisions of the Act, 1971.

15. The rules framed for carrying out
the purpose of the Act 1971, namely the
2 All. Lal Ji vs. State of U.P. & Ors.
1647
Uttar
Pradesh
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
others
Employees), Rules 1993, also provide that
the responsibility for submission of
requisition and the bill relating to the grant
is that of the manager.

16. A conjoint reading of the
aforesaid provisions, thus indicates that as
per the statutory frame work and the
scheme, as provided for under the Act,
1971 and the Rules framed thereunder, the
responsibility for ensuring submission of
necessary papers for the purposes of
payment of salaries of teachers and others
employees is of the management of the
Institution.

17. In the instant case, the order
dated 28.03.2019, under challenge in the
writ petition, is an order passed by the
DIOS, exercising powers under subsection (3) of Section 3 of the Act 1971,
after
recording
the
default
of
the
management in submission of the salary
bill.

18. In the said circumstances, the
judgment of the learned Single Judge
whereunder it has been held that the
Committee
of
Management
of
the
institution in question is the only body
which could have filed the writ petition
and not the Principal of the institution,
cannot be faulted with.

19. No palpable infirmity or
perversity has been pointed out in the
judgment under appeal so as to warrant
interference.

20. We are therefore not inclined to
interfere
with
the
judgment
dated
23.07.2019 passed in Writ-A No. 10710 of
2019. The present Special Appeal is thus
liable to be dismissed and is accordingly
dismissed.

21.

Learned
Senior
Counsel
appearing for the appellants at this stage
has
referred
to
certain
disciplinary
proceedings which are stated to have been
initiated against the sixth respondent.

22. In this regard we may only say
that the issue with regard to initiation of
disciplinary proceedings against the sixth
respondent was not the subject matter of
the writ petition before the learned Single
Judge, therefore, the dismissal of the writ
petition and also the present special appeal
would not in any manner effect any
proceedings in that regard, if the same
have already been initiated.
----------
(2020)02ILR A1647

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 06.02.2020

BEFORE

THE HON'BLE PANKAJ KUMAR JAISWAL, J.
THE HON'BLE KARUNESH SINGH PAWAR, J.

Service Bench No. 3213 of 2020

Lal Ji ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Yadukul Shiromani Srivast

Counsel for the Respondents:
C.S.C., Shikhar Anand

A. Service Law- Promotion - Petitioner
claims to have been wrongly reverted to the
post of Scientific Assistant from post of Senior
Scientific Assistant in the year 2015, due to