# Smt. Shailendra Rai v. State of U.P. and others

- **Citation:** (2009) 3 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-10-28
- **Case number:** Civil Misc. Writ Petition No. 43643 of 2006
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-shailendra-rai-v-state-of-u-p-and-others-41609
- **Pages:** 12

## Headnote

Sri R.P. Dubey
Sri C.K. Rai
Sri Vipul Tripathi
Sri Neeraj Tripathi
Sri Prabhat Rai
C.S.C.

Constitution of India, Art.-226-Salary
Art.21,
300-A-
Salary
of
petitioner
withheld since March 2005-inspite of
repeated direction R-5 neither filed
counter non appeared-only after issuing
warrant-
although
payment
made
through cheque- but the fact remain
regarding fixing liability- R.5 and R3
both equally responsible direction for
release of arrears of salary with 8%
interest given- considering conduct of
authorities exumplory cost imposed of
Rs.2 lacs, out of which Rs.1,5000/ shall
be recover from the personal benefit of
R.5 an remaining 50,000/- from R3 in
case of default to recover the same as
arrears of land Revenue.

Held: Para 22 and 25

In this case, as already discussed above,
the act of respondent no. 5 in non
payment of salary to the petitioner is
wholly
unjustified
and
illegal.
Simultaneously, this Court cannot leave
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the respondent no. 3 as wholly innocent
in the matter for the reason that he,
being a superior and higher officer, if
found that someone in his office is not
acting properly and is causing a glaring
injustice and illegality, it was incumbent
upon
him
to
apprise
the
State
Government
of
such
act
of
the
respondent
no.
5
recommending
a
suitable disciplinary action against him,
but the respondent no. 3 also kept
silence in this matter and it is only when
he was personally summoned, took steps
which he could have taken earlier for
paying the salary to the petitioner. To
this extent, the respondent no. 3 is also
guilty and is to be held responsible.

In view of the above discussion, this
Court is satisfied that here is a case
where the conduct of the respondents
makes them liable for an exemplary cost
which I quantify to Rs. two lacs. This
would also be compensatory to the
petitioner. The liability is distributed to
the extent of Rs. 1.5 lacs against
respondent no. 5 and fifty thousands
against respondent no. 3. The above cost
shall be paid by them within six months
failing which it would be open to the
Registrar General of this Court to take
steps to realize the same amount as
arrears of land revenue. After realizing
the amount of cost, the same may be
released in favour of the petitioner.
Case law discussed:
AIR 1979, SC 49, JT 2009 (13) SC 643, 2009
(2) SCC 592, JT 2007(3) SC 112, AIR 1979 SC
429, AIR 2006 SC 182, AIR 2006 SC 898,
(2007)9 SCC 497; (2009) 6 SCALE 17; (2009)7
SCALE 622, JT(2009) 12 SC 198, 1972 AC
1027, 1964 AC 1129, JT 1993 (6) SC 307, JT
2004 (5) SC 17, (1996) 6 SCC 558, AIR 1996
SC 715.

## Text

3 All] Smt. Shailendra Rai V. State of U.P. and others
999
majority in accordance with ratio laid
down in Rameshwari Devi's case (supra),.

4. In the present case, daughter of
petitioner Priyanka Pandey (Petitioner no.
1/1),
who
had
filed
impleadment
application, has also attained majority.
But Deepak Pandey (petitioner no. 1/2)
son of the deceased with the petitioner-
Smt. Raman Pandey is still a minor being
13 years of age, therefore, he is entitled to
retirement benefits of the deceased
employee particularly in the backdrop that
Smt. Raman Pandey had been nominated
as wife by the deceased in the service
records for receiving his benefits.

5. For all the reasons stated above,
this petition is allowed. The respondents
are directed to release retiral dues in
favour of minor son Deepak Pandey in the
form of Fixed Deposit in a nationalised
bank earning maximum interest payable
to him on his attaining majority i.e. 18
years of age. The F.D. shall be made in
the name of the minor Deepak Pandey,
expeditiously within a period of two
months from the date of presentation of a
certified copy of this order and the
petitioner who is natural guardian of the
minor at present, will be entitled to draw
interest half yearly on the deposit so made
to meet expenses of education etc. of the
children. No order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.10.2009

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 43643 of 2006

Smt. Shailendra Rai

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Markandey Rai
Sri D.S.P. Tripathi

Counsel for the Respondents:
Sri R.P. Dubey
Sri C.K. Rai
Sri Vipul Tripathi
Sri Neeraj Tripathi
Sri Prabhat Rai
C.S.C.

Constitution of India, Art.-226-Salary
Art.21,
300-A-
Salary
of
petitioner
withheld since March 2005-inspite of
repeated direction R-5 neither filed
counter non appeared-only after issuing
warrant-
although
payment
made
through cheque- but the fact remain
regarding fixing liability- R.5 and R3
both equally responsible direction for
release of arrears of salary with 8%
interest given- considering conduct of
authorities exumplory cost imposed of
Rs.2 lacs, out of which Rs.1,5000/ shall
be recover from the personal benefit of
R.5 an remaining 50,000/- from R3 in
case of default to recover the same as
arrears of land Revenue.

Held: Para 22 and 25

In this case, as already discussed above,
the act of respondent no. 5 in non
payment of salary to the petitioner is
wholly
unjustified
and
illegal.
Simultaneously, this Court cannot leave
1000 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
the respondent no. 3 as wholly innocent
in the matter for the reason that he,
being a superior and higher officer, if
found that someone in his office is not
acting properly and is causing a glaring
injustice and illegality, it was incumbent
upon
him
to
apprise
the
State
Government
of
such
act
of
the
respondent
no.
5
recommending
a
suitable disciplinary action against him,
but the respondent no. 3 also kept
silence in this matter and it is only when
he was personally summoned, took steps
which he could have taken earlier for
paying the salary to the petitioner. To
this extent, the respondent no. 3 is also
guilty and is to be held responsible.

In view of the above discussion, this
Court is satisfied that here is a case
where the conduct of the respondents
makes them liable for an exemplary cost
which I quantify to Rs. two lacs. This
would also be compensatory to the
petitioner. The liability is distributed to
the extent of Rs. 1.5 lacs against
respondent no. 5 and fifty thousands
against respondent no. 3. The above cost
shall be paid by them within six months
failing which it would be open to the
Registrar General of this Court to take
steps to realize the same amount as
arrears of land revenue. After realizing
the amount of cost, the same may be
released in favour of the petitioner.
Case law discussed:
AIR 1979, SC 49, JT 2009 (13) SC 643, 2009
(2) SCC 592, JT 2007(3) SC 112, AIR 1979 SC
429, AIR 2006 SC 182, AIR 2006 SC 898,
(2007)9 SCC 497; (2009) 6 SCALE 17; (2009)7
SCALE 622, JT(2009) 12 SC 198, 1972 AC
1027, 1964 AC 1129, JT 1993 (6) SC 307, JT
2004 (5) SC 17, (1996) 6 SCC 558, AIR 1996
SC 715.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Markandey Rai for the
petitioner,
Learned
Chief
Standing
Counsel assisted by Standing Counsel
representing respondents no. 1, 3, 4 and 5
and
Sri
C.K.
Rai,
Advocate,
for
respondent no. 2.

2. As agreed by learned counsels for
the parties, since the pleadings are
complete, the writ petition is being heard
and decided finally under the Rules of the
Court at this stage.

3. Though the controversy, which
has engaged the attention of this Court by
means of the present writ petition is very
short but shows the ways and means
adopted by the respondents for harassing
their employees to the extent of not only
putting him/her to great inconvenience
but making the entire family to suffer to
the extent of starvation without there
being any illegality or irregularity on the
part of such an employee.

4. The petitioner, Smt. Shailendra
Rai, an Assistant Teacher in a Junior High
School has approached this Court on
account of non payment of her salary by
the respondents since March' 2005
without there being any fault on her part.
A writ of mandamus has been prayed
directing the respondents to pay salary to
the petitioner since March' 1985.

5. To start with, this Court directed
the respondents to file counter affidavit
informing the Court as to why salary has
not been paid to the petitioner. On
21.8.2006, the following order was passed
by this Court:

"Sri C.K. Rai Advocate has accepted
notice on behalf of respondent nos. 2 and
3, Standing Counsel accepts notice on
behalf of respondent nos. 1, 4 and 5.
Respondents may seek instruction as
to why payment of salary is not being
effected in favour of the petitioner. The
3 All] Smt. Shailendra Rai V. State of U.P. and others
1001
District
Basic
Education
Officer,
Sonebhadra may also file his affidavit
along with the objection of the Finance
and Audit Officer in his office, referred to
in the letter dated 27.4.2006 List on 31st
August, 2006."

6. When the matter again came up
on 27.10.2006, a vague and incomplete
reply was filed which was noticed by this
Court in its order dated 27.10.2006 as
under :

"Learned counsel for the petitioner
states that he has not been served with
counter affidavit filed by the District
Basic Education Officer, Sonebhadra.
Moreover, the affidavit filed is not
accompanied with the objection of the
Finance and Audit Officer referred to in
the letter of the District Basic Education
Officer dated 27th April, 2006, as was
directed under order of this Court dated
21st August, 2006.
Let Sri C.K. Rai, learned counsel for
respondent nos. 2 and 3 file a better
affidavit in strict compliance of the order
of this Court dated 21st August, 2006, by
20th November, 2006.
Put up on 20th November, 2006."

7. Noticing that there was no fault
shown on the part of the petitioner for non
payment of salary, but inter alia shifting
of responsibility sought to be indulged by
the respondents, this Court on 11.11.2007
passed the following order :

"In the present case short counter
affidavit has been filed and the same is
only on behalf of respondent no. 3. In pith
and substance the said short counter
affidavit supports the version of the
petitioner and entire burden has been
fastened upon Finance and Accounts
Officer, based at the office of District
Basic Education Officer, Sonebhadra for
ensuring payment of salary to petitioner.
Backdrop of the case reflects that some
adjustment has been made and the reason
why Finance and Accounts Officer is not
ensuring payment of salary to petitioner is
not all before this Court, as such it would
be expedient that the version of Finance
and Accounts Officer should come before
this Court.
In these circumstances and in this
background,
Finance
and
Accounts
Officer, Office of District Basic Education
Officer indicating as to why salary is not
being
ensured
to
petitioner.
While
preparing
counter
affidavit
details
furnished in short counter affidavit filed
on behalf of respondents no. 3 shall also
be explained. For this purpose, learned
counsel for petitioner is directed to serve
a copy of this short counter affidavit upon
Finance and Accounts Officer, Basic
Education,
Sonebhadra
within
three
weeks from today. In the event of service
of short counter affidavit alongwith a
copy of this order in all eventuality
counter affidavit has to be filed by
Finance and Accounts Officer within next
three weeks.
List after one month."

8.

Thereafter,
on
13.8.2009,
5.10.2009 and 9.10.2009 having found
that the respondents were neither able to
give any justification for non payment of
salary to the petitioner nor had made any
effort to pay her salary, the following
orders were passed :

"The only grievance of the petitioner
is that he is not being given salary since
March 2005, though she is a regularly
appointed teacher in a Junior High
School maintained by the Basic Shiksha
1002 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
Parishad. Though counter affidavit has
been filed on behalf of respondent no. 3
though his counsel but he learned counsel
is not present. Sri Prabhat Rai, holding
brief of Sri Neeraj Tripathi, learned
counsel for the respondent no. 5 is present
but he is not able to tell as to why the
salary has not been paid to the petitioner
till date. Since the Court is not getting any
assistance from them so it is directed that
respondents no. 3 and 5 are shall be
present in Court and explain as to why the
salary of the petitioner has not been paid
so far.
List this matter on 30th September
on which date appropriate orders will be
passed in this matter. Sri Prabhat Rai,
holding brief for Sri Neeraj Tripathi, who
has filed his Vakalatnama on behalf of
respondent no. 5 and the learned standing
counsel for respondents 3 & 5 are
directed to make compliance of this order.
The office is directed to furnish a copy of
this order by Monday, i.e 17.08.2009.
13.08.2009"
"Vide order dated 13.08.2009 the
respondents no. 3 and 5 both were
required to appear before this Court on
30.09.2009 in person to explain as to why
the petitioner has not been paid salary so
far but since 30.09.2009 was declared as
holiday, Sri C.K. Rai, learned counsel
appearing for respondent no. 3 stated that
the respondent no. 3 is not present. Sri
Vipul Tripathi, holding brief on behalf of
Sri Neeraj Tripathi stated that he has filed
his Vakalatnama on behalf of respondent
no. 5 but it appears that the respondent
no. 5 has engaged some other counsel. It
is not concerned with the Court as to how
many counsels were engaged in a matter
but once notice has been issued to the
party concerned and he is aware with the
case, it is his obligation to keep watch of
the case.
In the facts and circumstances of the
case, respondents no. 3 and 5 both are
directed to be present in person before
this Court on 09.10.2009. Sri Rai and Sri
Tripathi shall communicate this order to
respondents no. 3 and 5 respectively as
the same has been passed in their
presence.
05.10.2009"
"On 13.08.2009 this Court passed
order directing the respondents no. 3 and
5 both to be present in person before this
Court to explain as to why the salary of
petitioner has not been paid though he is
a regularly appointed teacher in Junior
High School maintained by Basic Shiksha
Parishad.
The respondent no. 3, Sri Rajesh
Kumar is present but the respondent no. 5
is not present.
Sri Vipul Tripathi holding brief on
behalf of Sri Neeraj Tripathi states that he
has communicated the direction of this
Court to respondent no. 5 but he has not
responded.
Let non-bailable warrant be issued
to respondent no. 5 to ensure his presence
before this Court on 21.10.2009. The
office shall take appropriate steps for
compliance of this order. The respondent
no. 3 shall also remain present on the
next date.
List this matter on 21.10.2009.
09.10.2009"

9. The reluctant attitude shown by
the respondent no. 5 compelled this Court
in
issuing
non-bailable
warrant
on
9.10.2009
as
already
noted
above.
However, this time, the Registry of this
Court came to rescue of the respondents
by not taking steps for issuing non
bailable warrant as directed and on
21.10.2009 a report was submitted that
due to rush of work, no further action
3 All] Smt. Shailendra Rai V. State of U.P. and others
1003
could be taken by them and, therefore,
they may be granted some further time to
comply with the Court's order dated
9.10.2009.

10. In the meantime, an application
no. 274455 of 2009 was filed on behalf of
respondent no. 5 stating that firstly due to
mistake of Sri Neeraj Tripathi, Advocate,
he did not get any information of the
order dated 17.8.2009 and, therefore,
could not appear on 5.10.2009 and
secondly that on 6.10.2009 when he
received the information by that time he
suffered viral fever and hence could not
appear on 9.10.2009. The above statement
is sought to be supported by a medical
certificate issued by the Medical Officer,
District
Hospital,
Sonebhadra
dated
12.10.2009 certifying that the respondent
no. 5 Rajesh Kumar was in his treatment
as an outdoor patient since 8.10.2009 to
10.10.2009 and fitness certificate is being
issued from 12.10.2009.

11. It is to be noted that though
respondent no. 5 is impleaded by his
office and, therefore, he ought to be
represented by learned Standing Counsel
appointed by the State Government but in
this case, the application has been filed
through Sri Neeraj Tripathi, Advocate,
who has also filed counter affidavit on
behalf of respondent no. 5 earlier. The
respondent no. 5 thus has engaged this
private counsel but whether for the said
purpose he obtained permission from the
Government or not is not clear from the
record.

12. On the request of learned
counsels for the parties, this matter was
taken up on 28.10.2009 on which date Sri
Manohar Prasad, Basic Shiksha Adhikari,
Sonebhadra and Sri Rajesh Kumar,
Finance and Accounts Officer in the
office
of
Basic
Shiksha
Adhikari,
Sonebhadra,
both
were
present.
A
supplementary counter affidavit sworn on
27.10.2009
at
3.10.
P.M.
by
the
respondent 3 was also filed stating that by
cheque dated 15.10.2009, salary of the
petitioner for the period of March' 2005 to
October' 2009 has been paid and a
photocopy of Treasury Cheque dated
26.10.2009 was annexed. In para 4 and 5
of the supplementary counter affidavit, it
is said that due to some confusion and
misconception, some delay has occurred
in making payment of salary to the
petitioner, which is regretted and it is said
that since the petitioner's salary has been
paid, therefore, no further cause of action
survives and, the writ petition may be
dismissed as infructuous. The deponent of
the affidavit has also tendered his
unconditional apology.

13. Normally, when the relief sought
in the writ petition is met in the hands of
the respondents and this Court finds that
no further cause of actions survives, as a
normal practice, the writ petitions are
dismissed having become infructuous but
here is a case where the petitioner's salary
was detained by the respondents illegally
and without any lawful justification, as is
evident from the above facts, and when
she made this complaint to this Court in
August 2006, even then the respondents
did not look into the matter as a model
and law abiding employer having some
sense of sympathy and justice for their
employees, but here in a casual fashion
they filed incomplete and vague affidavits
shifting blame from one and another. No
attempt shown to be made to remedy the
grievance of the petitioner and that is how
she was compelled to suffer not only
herself but the entire family for a further
1004 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
period of three years and more. Not only
this, the respondents shown the audacity
and courage of even not attending this
Court flouting its order to the maximum
possible level and it is only when they
found no other option, the salary is paid to
the petitioner. This Court is thus clearly
satisfied that their action by means of the
supplementary counter affidavit is not
bona fide but just to bury a just and valid
grievance of harassment of the petitioner
by their extraordinary, not only belated
but also illegal and arbitrary act, and they
are trying to get the matter consigned so
as to wriggle out of the clutches of law in
respect to affixing of responsibility and
liability upon the officer concerned for
not only illegal detention of salary of a
person for almost four years but also by
harassing and victimizing her for no fault
on her part.

14. In my view, here is a case which
cannot be allowed to shut in such a
manner by simply confining the matter to
record without considering as to whether
the respondents are in fact guilty of an
illegal and arbitrary act, and, if so, how
they
must
be
made
accountable/responsible for the same.

15. An equity Court exercising
jurisdiction under Article 226 of the
Constitution of India is not only entitled
to look into valid grievances of the citizen
but also to pass appropriate orders against
the
State
or
its
officers
and
instrumentality as the case may be where
they are found to have acted in a wholly
illegal and arbitrary manner. From the
own admission of the respondents in the
counter affidavit where they have not
shown any fault on the part of the
petitioner as a reason for non payment of
salary to her since March' 2005, the denial
of salary to the petitioner is evidently
arbitrary
and
also
infringes
her
constitutional right under Articles 21 and
300A which provides that no person shall
be deprived of her property except in
accordance with the procedure prescribed
in law. In the case in hand, the petitioner
has been deprived of her lawful salary and
wages, which she has earned after
rendering service, in a manner which is
not prescribed in law.

16. Now, I may give in brief the
explanation given by the respondents for
non payment of salary to the petitioner.
The petitioner was initially working as
Assistant Teacher in a Primary School,
Billi Obra and was promoted as Assistant
Teacher (C.T. Grade) on 7.2.2004. It
appears that a Government Order was
issued on 9.6.2004 that the Teachers in
the Primary Schools be allowed to be
adjusted/accommodated according to the
strength of the students in the schools and
may be shifted to other schools where
there is deficiency. The Board of Basic
Education issued certain directions on
24.7.2004 that the Teachers who are
posted/appointed after July 2003 if are
found
in
excess
may
be
transferred/adjusted and those who have
the longest period of posting should first
be adjusted. It appears that the Secretary,
Basic Education, Allahabad passed an
order on 11.2.2005 stating that in the
Junior High School, Billi, 8 teachers
working and five of such Teachers were
to be adjusted by the District Basic
Education Officer but since Sri Shailendra
Rai and Rajani Rajvanshi were two
teachers who were posted after July, 2003
therefore first of all the said two teachers
be adjusted and thereafter adjustment of
rest of three teaches should be made.
Pursuant to the said order of Secretary,
3 All] Smt. Shailendra Rai V. State of U.P. and others
1005
Basic
Education,
Allahabad,
the
respondent no. 3 passed an order on
2.3.2005 cancelling adjustment of Smt.
Nirmala Devi-II, another teacher working
in the Junior School, Billi, Sonebhadra.
He also directed for compliance of the
Secretary, Board of Basic Education's
letter dated 11.2.2005. It is also said that
in view of the aforesaid orders, no further
teacher was required to be adjusted from
aforesaid Junior High School since the
strength of teachers was as per the
requirement and standard fixed, therefore,
the petitioner continued to work in the
said institution and it was in the interest of
the students at large. It is also said that in
June 2006, the strength of Junior School
reduced to three due to promotion and
transfer of Sri Munni Lal, a senior
Teacher of Junior High School, Billi,
Chopan as Head Master to Junior High
School, Obradeeh, Vikas Kshetra Chopan,
Sonebhadra. It is further said that the
petitioner's functioning in the institution
concerned was justified in all these
circumstances and, therefore, when the
salary bills of the petitioner were received
in the office of respondent no. 3, the same
were countersigned by respondent no. 3,
in particular Sri Vinod Sharma holding
office of respondent no. 3, and, the file
sent to the office of respondent no. 5 for
payment of salary but it is he (respondent
no. 5) who is not making payment to the
petitioner. Para 10 and 11 of the counter
affidavit of respondents no. 3 are
reproduced as under:

"10. That is is most respectfully
submitted that since there was no
requirement and occasion for adjustment
of the petitioner for the reasons stated
above and as such she remained posted in
the institution in question and was
discharging her duties and accordingly,
her attendance was also certified by the
Regional Asstt. Basic Shiksha Adhikari,
Chopan, Sonebhadra and her salary bill
was submitted in the office of the
deponent upon which the same was
counter-signed by the deponent and was
sent of the the office of Finance and
Accounts Officer of the office of B.S.A.
Sonebhadra for payment of her salary.
11. That it is relevant to mention here
that the Finance and Accounts Officer of
the office of the deponent without there
being any order of the competent
authority, deleted the salary of the
petitioner and made payment of salary to
the rest of the teachers working in Vikas
Kshetra Chopan and their salary were
transmitted
in
the
Bank
accounts
concerned."

17. It is said that on the
representation made by the petitioner to
respondent no. 3, repeated directions were
issued to respondent no. 5 but he did not
take steps for payment of salary to the
petitioner. When the matter was brought
to the notice of District Magistrate,
Sonebhadra, he also passed an order on
6.1.2006 for disbursement of salary to the
petitioner
but
even
thereafter
the
respondent no. 5, adopting an adamant
attitude, did not pay salary to the
petitioner. The stand taken by respondent
no. 3 in para 14, 15 and 16 of his counter
affidavit is reproduced as under:

"14. That it is relevant to mention here
that the abovenoted direction issued by
the District Magistrate was also apprised
to the Finance and Accounts Officer vide
Letter dated 18.1.2006 issued by the office
of the deponent but despite of the same,
he has not paid the salary to the
petitioner.
1006 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
15. That it is also pertinent of the
mention here that at present in the
institution in question in view of strength
of students, at least five teachers are
required but against the same, only 3
teachers are working and as such no
occasion has arisen for adjustment of the
petitioner, accordingly she continued to
work in the said institution and has
performed teaching work but despite of
repeated directions issued by the higher
authorities
concerned
as
well
as
deponent, the Finance and Accounts
Officer of the office of the deponent, is not
making payment of salary to the petitioner
for the reason best known to him.
16. That it is pertinent of the mention
here that in pursuance to the order passed
by this Hon'ble Court dated 21.8.2006,
the deponent has written a letter to the
Finance & Accounts Officer asking him
about the non-payment of salary to the
petitioner. Copy of the said letter dated
25.8.2006 is filed herewith as Annexure
CA-5 to this affidavit."

18. In the Counter affidavit filed on
behalf of respondent no. 5, it is evident
that he has levelled serious allegations
against the respondent no. 3 stating that in
his (respondent no. 3) affidavit he has
concealed several facts. In fact in view of
the Secretary, Board of Education's letter
dated 24.7.2004, the petitioner ought to
have been adjusted in some other
institution but the same having not been
done, her non payment of salary by
respondent no. 5 is absolutely just and
valid. From the documents appended to
the affidavit filed by respondent no. 5, it
is evident that the justification of a
Teacher in a particular school and
necessity of adjustment, if any, was to be
considered firstly by the Board of Basic
Education and, thereafter, by the District
Basic Education Officer of the concerned
District. No other authority or officer was
entitled or empowered by any order either
by the State Government or the Board of
Basic Education authorizing him/her to
flout either the orders passed by the
District Basic Education Officer or to take
a decision of his/her own so as to disobey
or not to comply the order passed by the
District Basic Education Officer.

19. The respondent no. 5, Sri Rajesh
Kumar, who was present in the Court
when enquired as to how he was
authorized and empowered to ignore the
direction/order issued by District Basic
Education Officer, and, whether the
respondent no. 3 is not an officer higher
in rank than him in the hierarchy, he
could not give any justification for his
action. He also could not explain as to
how he could disobey the order of the
District
Basic
Education
Officer
(respondent no. 3). In fact, even from the
documents filed as enclosures to his
counter affidavit in support of his
averments made in the counter affidavit,
he failed to show as to which part of those
orders either of the State Government or
that of Board of Board of Basic Education
authorises him to take a decision as to
whether a particular teacher would be
entitled for payment of salary when the
District Basic Education Officer in his
own discretion has not found any reason
for shifting or transfer a teacher and has
cleared the salary bill of such teacher.

20. With regard to non compliance
of the Courts order regarding his
presence, I find that on the one hand he
claim to have fallen ill on 6.10.2009 but
the medical certificate is for the period of
8.10.2009 to 10.10.2009, it appears that
only to cover up the date on which he was
3 All] Smt. Shailendra Rai V. State of U.P. and others
1007
supposed to appear before this Court, i.e
9.10.2009. Moreover, swearing of para 5
of the affidavit accompanying the recall
application wherein he has said that he
did not receive any information due to
mistake on the part of the office of Sri
Neeraj Tripathi, Advocate, is on the basis
of the information received and regarding
sickness and medical certificate, the
averments contained in para 6 of the said
affidavit have been partly sworn on the
basis of personal knowledge and partly on
the basis of record. This itself makes the
aforesaid
averments
unreliable
and
incredible.

21. Having found myself satisfied
that the respondent no. 5 has no valid and
lawful justification for detaining salary of
the petitioner, I am also satisfied that his
act was not only illegal and arbitrary but
travels in the realm of malice in law,
therefore, it deserves to be dealt with
severely by this Court so that no
Government officer in future may have
the audacity of harassing a helpless poor
employee, firstly, by torturing him/her by
detaining
his/her
lawful
dues
and
thereafter to escape from any liability so
as to boast that nobody can touch him
even if he commits an ex facie illegal or
unjust act. Every Government officer,
howsoever high, must always keep in
mind that nobody is above law. The hands
of justice are meant not to only catch out
such
person
but
it
is
also
the
constitutional duty of a Court of law to
pass suitable order in such a matter so that
such an illegal act may not be repeated,
not only by him/her but others also. This
should
be
a
lesson
to
everyone
committing an act which is ex facie unjust
and having not been done for any just or
lawful reason. Prima facie it must be
treated to have been done for collateral
purposes and covered by the term ''malice
in law'.

22.

The
Apex
Court
has
summarised "malice in law " in (Smt.)
S.R.Venkatraman Vs. Union of India
and another, AIR 1979, SC 49 as under :

"It is equally true that there will be
an error of fact when a public body is
prompted by a mistaken belief in the
existence of a non-existing fact or
circumstance.
This
is
so
clearly
unreasonable that what is done under
such a mistaken belief might almost be
said to have been done in bad faith; and
in actual experience, and as things go,
these may well be said to run into one
another." (Para 8)

12. The Apex Court further in para 9
of the judgment in S.R.Venkatraman
(supra) observed:

" 9. The influence of extraneous
matters will be undoubted where the
authority making the order has admitted
their influence. It will therefore be a gross
abuse of legal power to punish a person
or destroy her service career in a manner
not warranted by law by putting a rule
which makes a useful provision for the
premature retirement of Government
servants only in the ''public interest', to a
purpose wholly unwarranted by it, and to
arrive at quite a contradictory result. An
administrative order which is based on
reasons of fact which do not exist must,
therefore, be held to be infected with an
abuse of power."

13. In Mukesh Kumar Agrawal
Vs. State of U.P. and others JT 2009
(13) SC 643 the Apex Court said :
1008 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
"We also intend to emphasize that
the distinction between a malice of fact
and malice in law must be borne out from
records; whereas in a case involving
malice in law which if established may
lead to an inference that the statutory
authorities had acted without jurisdiction
while exercising its jurisdiction, malice of
fact must be pleaded and proved."

14. In Somesh Tiwari Vs. Union of
India and others 2009 (2) SCC 592
dealing with the question of validity of an
order of transfer on the ground of malice
in law , the Apex Court in para 16 of the
judgment observed as under:

"16. .... Mala fide is of two kinds--
one malice in fact and the second malice
in law. The order in question would
attract the principle of malice in law as it
was not based on any factor germane for
passing an order of transfer and based on
an irrelevant ground i.e on the allegations
made against the appellant in the
anonymous complaint. It is one thing to
say that the employer is entitled to pass
an order of transfer in administrative
exigencies but it is another thing to say
that the order of transfer is passed by way
of or in lieu of punishment. When an
order of transfer is passed in lieu of
punishment, the same is liable to be set
aside being wholly illegal."

15. In HMT Ltd. and another Vs.
Mudappa and others JT 2007(3) SC
112 the Apex Court in paras 18 and 19
defined malice in law by referring to
"Words and Phrases Legally Defined, 3rd
Edn., London Butterworths, 1989" as
under:

"The legal meaning of malice is "illwill or spite towards a party and any
indirect or improper motive in taking an
action". This is sometimes described as
"malice in fact". "Legal malice" or
"malice in law" means ''something done
without lawful excuse'. In other words, ''it
is an act done wrongfully and wilfully
without reasonable or probable cause,
and not necessarily an act done from ill
feeling and spite'. It is a deliberate act in
disregard of the rights of others."

"19. It was observed that where
malice was attributed to the State, it could
not be a case of malice in fact, or
personal ill-will or spite on the part of the
State. It could only be malice in law, i.e
legal mala fide. The State, if it wishes to
acquire land, could exercise its power
bona fide for statutory purpose and for
none other. It was observed that it was
only because of the decree passed in
favour of the owner that the proceedings
for acquisition were necessary and hence,
notification was issued. Such an action
could not be held mala fide."

16. In brief malice in law can be said
when a power is exercised for an
unauthorized purpose or on a fact which
is claimed to exist but in fact, is non-est or
for the purpose for which it is not meant
though apparently it is shown that the
same is being exercised for the purpose
the power is supposed to be exercised.
(See Manager Govt. Branch Press and
another Vs. D.B.Belliappa AIR 1979 SC
429; Punjab Electricity Board Vs. Zora
Singh and others AIR 2006 SC 182;
K.K.Bhalla Vs. State of U.P. and others
AIR 2006 SC 898; P. Mohanan Pillai
Vs. State of Kerala and others (2007) 9
SCC 497; M.P.State Corporation Diary
Federation
Ltd.
and
another
Vs.
Rajneesh Kumar Zamindar and others
(2009) 6 SCALE 17; Swarn Singh
3 All] Smt. Shailendra Rai V. State of U.P. and others
1009
Chand Vs. Punjab State Electricity
Board and others (2009) 7 SCALE 622
and Sri Yemeni Raja Ram Chandar Vs.
State of Andhra Pradesh and others JT
(2009) 12 SC 198.

17. Regarding harassment of a
Government
employee
referring
to
observations of Lord Hailsham in Cassell
& Co. Ltd. Vs. Broome, 1972 AC 1027
and Lord Devlin in Rooks Vs. Barnard
and others 1964 AC 1129, the Apex
Court
in
Lucknow
Development
Authority Vs. M.K. Gupta JT 1993 (6)
SC 307 held as under;

"An Ordinary citizen or a common
man is hardly equipped to match the
might of the State or its instrumentalities.
That is provided by the rule of law....... A
public functionary if he acts maliciously
or oppressively and the exercise of power
results in harassment and agony then it is
not an exercise of power but its abuse. No
law provides protection against it. He
who is responsible for it must suffer
it...........Harassment of a common man by
public authorities is socially abhorring
and legally impermissible. It may harm
him personally but the injury to society is
far more grievous." (para 10)

18. The above observation as such
has
been
reiterated
in
Ghaziabad
Development Authorities Vs. Balbir
Singh JT 2004 (5) SC 17.

19. In the case of Registered
Society Vs. Union of India and Others
(1996) 6 SCC 530 the Apex court said as
under:

"No public servant can say "you may
set aside an order on the ground of mala
fide but you can not hold me personally
liable" No public servant can arrogate in
himself the power to act in a manner
which is arbitrary".

20. In the case of Shivsagar Tiwari
Vs. Union of India (1996) 6 SCC 558 the
Apex Court has held as follows:

"An arbitrary system indeed must
always be a corrupt one. There never was
a man who thought he had no law but his
own will who did not soon find that he
had no end but his own profit."

21.

In
the
case
of
Delhi
Development Authority Vs. Skipper
Construction and Another AIR 1996
SC 715 has held as follows:

"A democratic Government does not
mean a lax Government. The rules of
procedure and/or principles of natural
justice are not mean to enable the guilty
to delay and defeat the just retribution.
The wheel of justice may appear to grind
slowly but it is duty of all of us to ensure
that they do grind steadily and grind well
and truly. The justice system cannot be
allowed to become soft, supine and
spineless."

22. In this case, as already discussed
above, the act of respondent no. 5 in non
payment of salary to the petitioner is
wholly
unjustified
and
illegal.
Simultaneously, this Court cannot leave
the respondent no. 3 as wholly innocent in
the matter for the reason that he, being a
superior and higher officer, if found that
someone in his office is not acting
properly and is causing a glaring injustice
and illegality, it was incumbent upon him
to apprise the State Government of such
act of the respondent no. 5 recommending
a suitable disciplinary action against him,
1010 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
but the respondent no. 3 also kept silence
in this matter and it is only when he was
personally summoned, took steps which
he could have taken earlier for paying the
salary to the petitioner. To this extent, the
respondent no. 3 is also guilty and is to be
held responsible.

23. In the circumstances, the writ
petition is allowed with the direction to
the respondents to pay simple interest on
the delayed payment of salary to the
petitioner at the rate of 8% p.a. from the
date the same became due till actual
payment.

24. Liberty is given to respondent
no. 1 to realize the amount of interest paid
to the petitioner under this order from the
officials concerned who, it may found
responsible after holding an appropriate
departmental enquiry in this matter.

25. In view of the above discussion,
this Court is satisfied that here is a case
where the conduct of the respondents
makes them liable for an exemplary cost
which I quantify to Rs. two lacs. This
would also be compensatory to the
petitioner. The liability is distributed to
the extent of Rs. 1.5 lacs against
respondent no. 5 and fifty thousands
against respondent no. 3. The above cost
shall be paid by them within six months
failing which it would be open to the
Registrar General of this Court to take
steps to realize the same amount as
arrears of land revenue. After realizing
the amount of cost, the same may be
released in favour of the petitioner.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2009

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No.51528 of 2009

Rishi Pal Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Vijay Gautam

Counsel for the Respondents:
C.S.C.

Constitution
of
India-Article
226Transfer of Sub-Inspector-who remained
in
adjoining
District
for
24
yearsinvolved in Criminal Case offence under
379 IPC-on ground of challenge made
that
the
approving
authority-'Police
Establishment
Board'
not
properly
constituted-G.O.
dated
12.08.09
providing the approval of the decision of
Board by D.G.P.-which put further check
on exercise of power of Transfer-helddirection of Supreme Court in Prakash
Singh Case fully complied with-No scope
for technical plea-Transfer order can not
be interfered.

Held: Para 16 & 17

In the aforesaid facts and circumstances,
in so far as the police Establishment
Board that has granted approval to the
transfer of the petitioner is concerned
has subserved the object with which the
guidelines
were
laid
down
by
the
Supreme Court, the approval so granted
would not stand vitiated only for the
reason that the Director General of
Police has not been included as one of its
members specially when the approval
granted by the Police Establishment
Board is further required to be approved
by the Director General of Police.