# Smt. Sheela Sharma v. State of U.P. & Ors

- **Citation:** (2014) 2 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-07-28
- **Case number:** Civil Misc. Writ Petition No. 4979 of 2009
- **Bench:** Pradeep Kumar Singh Baghel
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sheela-sharma-v-state-of-u-p-ors-42985
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Withholding
post retiral benefit-petitioner while in
service-punishment-withholding
two
increments by Board-writ against dismissed
special appeal by management pendingargument that in absence of statutory
provision
to
continue
disciplinary
proceeding
even
after
retirement-due
pendancy of special appeal makes no
difference-held-order denying benefit by
DIOS
quashed-consequential
direction
given.
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-18
In view of the said facts the order of the
DIOS dated 02.01.2009 is liable to be set
aside. It is accordingly set aside. The
petitioner is permitted to move a fresh
application alongwith the certified copy
of this order within two weeks giving
details of her entitlement of the salary
and retiral benefits and various dues,
which have been mentioned in the writ
petition, before the DIOS. The DIOS shall
pass the appropriate order expeditiously
but not later than three months from the
date of communication of this order.

Case Law discussed:
2002(2) ESC 915(All.); 2004 (1) AWC 310;
2007 (6) ADJ 490.

## Text

2 All] Smt. Sheela Sharma Vs. State of U.P. & Ors.
821
he submits that the petitioner had retired
in 2009 and admittedly he had not filed
any writ petition or approached any court
of law and, therefore, directions in the
judgement of Jaswant Singh would
wholly prevail and no relief can be
granted to the petitioner. He has referred
to the judgement of the Supreme Court in
the case of Brijesh Kumar and others vs.
State of Haryana & Others, Special Leave
Petition Nos.6609-6613 of 2014, which
matter arose out of an award under the
Land Acquisition Act and the Supreme
Court relying upon its earlier decisions in
the cases of State of Karnataka v. S.M.
Kotrayya (1996) 6 SCC 267, Jagdish Lal
v State of Haryana, AIR 1997 SC 2366
and Rup Diamonds v. Union of India AIR
1989 SC 674 has rejected the claim of the
petitioners on the ground that they had
never agitated their matter before any
court of law and had approached the
Court only after the decision rendered by
the Court in other cases, therefore, the
claim was time barred and no relief could
be granted.

7. I have considered the rival
submissions of the learned counsel for the
parties.

8. The only question in the present
case is whether the claim of the petitioner
was barred by laches and no relief could
be granted by this Court in view of the
judgment in the case of Jaswant Singh
(supra). However, the judgment of
Jaswant
Singh
has
already
been
considered by the Supreme Court in the
case of Dayanand Chakrawarty (supra)
which was a case relating to the
employees of the Jal Nigam and it is only
thereafter that the Supreme Court has
given directions in para-38 of that
judgment.

9. In this view of the matter, it is not
in dispute between the parties that the
case of the petitioner squarely falls in
category (b) of para 38 of the directions
given by the Supreme Court in the case of
Dayanand Chakrawarty (supra).

10. This writ petition is, therefore,
allowed in the light of the directions given
by the Supreme Court in paragraph 38 (b)
of the judgement in the case of Dayanand
Chakrawarty (supra).

11. There shall be no order as to
costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2014

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 4979 of 2009

Smt. Sheela Sharma ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Sunil Kumar Srivastava, Sri Ashok
Khare, Sri R.P. Pandey

Counsel for the Respondents:
C.S.C., Sri G.K. Singh, Sri V.K. Singh

Constitution of India, Art.-226-Withholding
post retiral benefit-petitioner while in
service-punishment-withholding
two
increments by Board-writ against dismissed
special appeal by management pendingargument that in absence of statutory
provision
to
continue
disciplinary
proceeding
even
after
retirement-due
pendancy of special appeal makes no
difference-held-order denying benefit by
DIOS
quashed-consequential
direction
given.
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-18
In view of the said facts the order of the
DIOS dated 02.01.2009 is liable to be set
aside. It is accordingly set aside. The
petitioner is permitted to move a fresh
application alongwith the certified copy
of this order within two weeks giving
details of her entitlement of the salary
and retiral benefits and various dues,
which have been mentioned in the writ
petition, before the DIOS. The DIOS shall
pass the appropriate order expeditiously
but not later than three months from the
date of communication of this order.

Case Law discussed:
2002(2) ESC 915(All.); 2004 (1) AWC 310;
2007 (6) ADJ 490.

(Delivered by Hon'ble Pradeep Kumar
Singh Baghel, J.)

1. The petitioner has laid challenge
to the order passed by the District
Inspector of Schools, Budaun (for short,
"the DIOS") dated 02 January 2009,
whereby the petitioner's post retiral
benefits and other benefits have been
withheld on the ground that a Special
Appeal is pending. The said order has
been passed by the DIOS on the basis of
the opinion obtained by him from the
District Government Counsel (Civil) [for
short, "the DGC"].

2. The essential facts are that the
Chiraunji Lal Dharmpal Kanya Uchchatar
Madhyamik Vidyalaya, Dataganj, Budaun
(for
short,
"the
Institution")
is
a
recognized and aided Institution. It
receives aid up to the High School level.
The provisions of the U.P. Intermediate
Education Act, 1921 (U.P. Act No. II of
1921),
U.P.
High
Schools
and
Intermediate
Colleges
(Payment
of
Salaries
of
Teachers
and
other
Employees) Act, 1971 (U.P. Act No. 24
of 1971) and the U.P. Secondary
Education (Services Selection Boards)
Act, 1982 (U.P. Act No. 5 of 1982) are
applicable to the Institution.

3. The petitioner was initially
appointed in the Institution when the
Institution was up to the level of Junior High
School. She was appointed as Assistant
Teacher in C.T. grade on 01 July 1974. After
the upgradation of the Institution up to the
level of High School she was absorbed as an
Assistant Teacher in L.T. Grade in the
Institution and from 10 December 1982 she
was
granted
ad
hoc
promotion
as
Headmistress of the High School.

4. From the record it transpire that
she was subjected to the disciplinary
proceeding,
the
Committee
of
Management proposed dismissal of the
petitioner. The said proposal was sent to
the U.P. Secondary Education Services
Selection Board (for short, "the Board") in
terms of Section 21 of the U.P. Act No. 5
of 1982. The Board after affording
opportunity to the petitioner and the
Committee of Management modified the
proposed punishment of dismissal by
withholding
two increments
of
the
petitioner vide order dated 13 April 2007.

5. Aggrieved by the said order the
Committee of Management preferred a
Writ Petition No. 23585 of 2007. The said
writ petition was dismissed by this Court
vide order dated 07 June 2007. This Court
has noticed the fact that the Commission
was satisfied that there were minor lapses
on the part of the petitioner and as such
no illegality was found in awarding
punishment
of
withholding
of
two
increments on permanent basis, which is
also one of the prescribed punishments
under the U.P. Act No. II of 1921 and
U.P. Act No. 5 of 1982.
2 All] Smt. Sheela Sharma Vs. State of U.P. & Ors.
823

6. Dissatisfied with the said order
the Committee of Management preferred
a Special Appeal No. 833 of 2007. It is
stated that in the said Special Appeal no
interim order was passed and it is still
pending. In the meantime the petitioner
reached her age of superannuation and she
retired on 30 June 2009.

7. It is stated that the petitioner after
her retirement is entitled for the revised
pay scale applicable to the post of
Headmistress of High School in terms of
a Government Order dated 20 July 2001;
further revision w.e.f. 01 July 2001; the
arrears of salary from 14 October 2001 to
July 2007 as during this period she was
paid only subsistence allowance.

8. The petitioner had made several
applications for the aforesaid relief as also
in her representation dated 25 September
2008.

9. From the record it transpires that
the DIOS on the application of the
petitioner has sought legal opinion from
the DGC vide his communication dated
10.11.2008.
A
copy
of
the
said
communication of the DIOS is on the
record as annexure-6 to the writ petition.
In response to the said communication the
DGC has opined that since the Special
Appeal is pending against the order of the
learned Single Judge, therefore, all the
dues of the petitioner should be paid after
the disposal of the Special Appeal. The
said communication has been made to the
petitioner under the Right to Information
Act on 02.01.2009.

10. Counter affidavit has been filed
on behalf of the State Government. The
only stand taken in the counter affidavit is
that the Special Appeal is pending as such
it would be appropriate to pay the
petitioner after decision in the Special
Appeal.

11. Sri Ashok Khare, learned Senior
Advocate assisted by Sri Sunil Kumar
Srivastava,
learnedCounsel
for
the
petitioner submits that in any view of the
matter now the petitioner stood retired
and under the provisions of the U.P. Act
No. II of 1921 there is no provision to
continue the disciplinary proceeding after
the retirement, therefore, even if the
Special Appeal is pending it would not
make any difference for the aforesaid
reason. He has placed reliance on the
judgement of this Court in the case of Dr.
R.B. Agnihotri v. State of U.P. and others,
2000(2) ESC 915 (All.) and; Ravindra
Singh Rathore v. District Inspector of
Schools, Etawah and others, 2004 (1)
AWC 310.

12. Learned Standing Counsel has
very fairly submitted that merely on the
ground of pendency of the Special Appeal
the petitioner's dues cannot be withheld.

13. Sri Chandra Prakash Yadav,
learned Advocate holding brief of Sri
V.K. Singh, learned Counsel for the
respondent no. 4 states that he has no
instructions in the matter.

14. I have heard learned Counsel for
the respective parties and considered their
submissions.

15. Section 21 of the U.P. Act No.5
of 1982 provides that any punishment
proposed
by
the
Committee
of
Management shall not take effect without
approval of the Board. In the instant case
the Board has considered the proposed
punishment and has recorded the finding
824 INDIAN LAW REPORTS ALLAHABAD SERIES
that the allegations were minor in nature
and, therefore, the proposal of dismissal
was disproportionate to the charges
levelled against the petitioner.

16. In view of the said finding the
Board has awarded the punishment of
only withholding of two increments on
permanent basis. The decision of the
Board has been upheld by this Court in
Committee of Management, Chiraunji Lal
Dharampal Kanya Ucchhatar Madhyamik
Vidyalaya, Badaun and another v. State of
U.P. and another v. State of U.P. and
others, 2007 (6) ADJ 490. A copy of the
said judgment is annexure-1 to the writ
petition. The Special Appeal filed against
the said judgment is pending but
admittedly no interim order has been
passed.

17. I find there is considerable merit
in the contention urged by Sri Khare that
in the U.P. Act No. II of 1921 and U.P.
Act No. 5 of 1982 there is no provision
for initiating or continuing disciplinary
proceeding against a retired teacher,
therefore, in absence of any provision in
the U.P. Act No. II of 1921 and the U.P.
Act No. 5 of 1982 to continue the
disciplinary
proceedings
against
the
retired teacher, the pendency of the
Special Appeal will have no effect after
the retirement of the petitioner.

18. In view of the said facts the
order of the DIOS dated 02.01.2009 is
liable to be set aside. It is accordingly set
aside. The petitioner is permitted to move
a fresh application alongwith the certified
copy of this order within two weeks
giving details of her entitlement of the
salary and retiral benefits and various
dues, which have been mentioned in the
writ petition, before the DIOS. The DIOS
shall
pass
the
appropriate
order
expeditiously but not later than three
months from the date of communication
of this order.

19. The DIOS shall have due regard
to the fact that the petitioner is a retired
teacher, therefore, all her dues may be
paid expeditiously without any delay.

20. The writ petition is, accordingly,
allowed.

21. No order as to costs.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.07.2014

BEFORE
THE HON'BLE MAHESH CHANDRA TRIPATHI, J.

Civil Misc. Writ Petition No. 14572
of 2006

Constable 872 C.P. Gulab Singh ...Petitioner
Versus
Deputy Inspector General of Police &
Ors., PHQ, Allahabad ...Respondents

Counsel for the Petitioner:
Sri Shailendra Mishra, Sri Manu Sharma
Sri H.K. Sharma

Counsel for the Respondents:
C.S.C.

Payment of Gratuity Act, 1972-Section-4(6)
Gratuity-withhold on ground of pendency of
criminal case-admittedly till the date of
superannuation-no departmental enquiry
initiated-held-can
not
be
withheldconsequential direction issued.

Held: Para-16
In the present matter, it is admitted case
that in pursuance of the criminal proceeding,
there was no departmental inquiry had ever