# State of U.P. & Anr v. S.M. College, Chandausi & Anr

- **Citation:** Application No.1 of 2020
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-01-29
- **Case number:** Application No.1 of 2020
- **Bench:** Govind Mathur, C.J. Chandra Dhari Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/state-of-u-p-anr-v-s-m-college-chandausi-anr-46220
- **Pages:** 7

## Headnote

Constitution of India: Article 23 -
Non-payment of arrears of salary to
the writ petitioner for the period in
question does not have any concern
w.r.t. the question of qualification or
experience
of
the
petitioner/respondent at the time of
the
appointment
on
the
post
of
Assistant Teacher in the Institution.

There is no order of the competent
authority for withholding the salary of the
writ petitioner/respondent. (Para 23)
The petitioner/respondent is continuously
working on the post of Assistant Teacher
in the institution since the date of the
appointment, and is also getting salary
from the said date except for the period
in question. (Para 24)
No disciplinary proceeding or any action
provided in the statute was taken either
for an alleged absence for the period in
question or for the lack of qualification (in
education
or
experience).
Petitioner
admittedly
lacking
in
experience
and
educational qualification was allowed to
work on the post of Assistant Teacher
since last several years and was also paid
salary continuously except for the period
in question. (Para 7, 24)

B. Meaning of 'Begar' discussed - ' Begar' can
take different forms such as forced labour, taking
work without remuneration or taking work without
paying adequate remuneration or remuneration less
than the minimum wages. (Para 16 to 22)

Appeal dismissed. (E-4)

Precedent followed:

## Text

3-5 All. State of U.P. & Anr. Vs. Akbar Naim & Ors.
1777

The administrative order of the
Hon'ble The Chief Justice dated 16th
December, 2013, which has been relied on in
the office report dated 20th January, 2020, as
such, will not be applicable in the instant case.

If a nominated / specially assigned
matter is released by a Bench - not being a "tied
up" or a "part heard" case - the Registry
ordinarily should place it before the Hon'ble,
The Chief Justice, for an appropriate order of
fresh assignment or a direction from the
Hon'ble, The Chief Justice, for the matter to be
listed before the regular Bench. In this case,
however, the matter has been placed before us
by virtue of the office report dated 20th
January, 2020, which does not refer to any such
direction of the

Hon'ble,
The
Chief
Justice,
consequent upon the order dated 17th January,
2020, passed by the Division Bench presided
over by the Hon'ble Mr. Justice Bala Krishna
Narayana.

The Registry is therefore directed to
place the matter before the Hon'ble, The Chief
Justice for necessary order."

2. Consequent thereto, the matter
was placed before the Hon'ble the Chief
Justice for necessary order.

3. It appears that the Hon'ble the
Chief
Justice,
in
His
Lordship's
administrative side, has passed the
following order on 17th February,
2020:-

"Lay/list before appropriate
Court dealing with such matters."

4. Since this is the appropriate Court
dealing with such matters, we now propose
to hear out the matter on its merit.

In Re.: Civil Misc. Delay Condonation
Application No.1 of 2020
Special Appeal Defective No. 24 of 2020

State of U.P. & Anr. ....Appellants
 Versus
S.M. College, Chandausi & Anr.
 .....Respondents

Counsel for Appellants:
Archana Singh

Counsel for Respondents:
Gautam Baghel

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

1. After considering the submissions
made by the learned advocates for the
parties and upon perusing the application
for condonation of delay, it appears that
sufficient cause has been shown to explain
the delay in filing of the appeal and as
such,
the
delay
is
condoned.
The
application for condonation of delay is
accordingly allowed.

2. Office is directed to allot regular
number to this appeal and list it on 24th
February, 2020, under the same heading.
----------
(2020)03-05ILR A1777
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.01.2020

BEFORE

THE HON'BLE GOVIND MATHUR, C.J.
THE HON'BLE CHANDRA DHARI SINGH, J.

Special Appeal No. 397 of 2010

State of U.P. & Anr. ...Appellant
Versus
Akbar Naim & Ors. ...Respondent

Counsel for the Appellant:
1778 INDIAN LAW REPORTS ALLAHABAD SERIES
C.S.C.

Counsel for the Respondent:
Sanjay Kumar

A. Service - Payment of salary -
Constitution of India: Article 23 -
Non-payment of arrears of salary to
the writ petitioner for the period in
question does not have any concern
w.r.t. the question of qualification or
experience
of
the
petitioner/respondent at the time of
the
appointment
on
the
post
of
Assistant Teacher in the Institution.

There is no order of the competent
authority for withholding the salary of the
writ petitioner/respondent. (Para 23)
The petitioner/respondent is continuously
working on the post of Assistant Teacher
in the institution since the date of the
appointment, and is also getting salary
from the said date except for the period
in question. (Para 24)
No disciplinary proceeding or any action
provided in the statute was taken either
for an alleged absence for the period in
question or for the lack of qualification (in
education
or
experience).
Petitioner
admittedly
lacking
in
experience
and
educational qualification was allowed to
work on the post of Assistant Teacher
since last several years and was also paid
salary continuously except for the period
in question. (Para 7, 24)

B. Meaning of 'Begar' discussed - ' Begar' can
take different forms such as forced labour, taking
work without remuneration or taking work without
paying adequate remuneration or remuneration less
than the minimum wages. (Para 16 to 22)

Appeal dismissed. (E-4)

Precedent followed:

1. S. Vasudevan Vs. S.D. Mital, AIR 1962 Bom 53
(Para 19)

2. People's Union for Democratic Rights Vs. U.O.I.,
(1982) 3 SCC 235; AIR 1982 SC 1473 (Para 21)
3. St. of Guj. Vs. Hon'ble High Court of Gujarat,
(1998) 7 SCC 392 (Para 22)

Appeal against judgment and order dated
10.03.2010, passed in Writ Petition No. 1842
(SS) of 1994.

(Delivered by Hon'ble Chandra Dhari Singh,
J.)

1. The instant intra-court appeal has been
filed by appellants under Chapter VIII Rule 5 of
the Allahabad High Court Rules, 1952 against
the judgment and order dated 10.03.2010
passed by the learned Single Judge in Writ
Petition No.1842 (SS) of 1994 by which the
writ petition has been allowed with a direction
to the respondents to call for the records and go
through the orders passed by the State
Government and this Court and release the
payment of held up salary to the petitioner
(respondent no.1 herein) within six weeks for
the period 01.10.1992 to 03.02.1995. While
allowing the writ petition, a cost of Rs.5000/-
was also imposed on the respondents.

2. Brief facts of this case are that
respondent no.1, who was working as a
teacher in a Madarsa Darul Uloom Pir
Batawan,
District-Barabanki,
has
approached this court seeking payment of
his held up salary w.e.f. 01.10.1992 to
03.02.1995. The said Madarsa is duly
recognized and aided by Government of
U.P. Initially the District Basic Educational
Officer,
Barabanki
was
exercising
administrative control over this institution,
later on, the District Minorities Welfare
Officer became the supervisory authority in
the District. The respondent no.1 has
discharged his duties and functions during
the
above
said
period
with
utmost
dedication but the salary was not paid as
the same could not be processed. The
respondent no.1 approached the superior
authorities including the State Government
3-5 All. State of U.P. & Anr. Vs. Akbar Naim & Ors.
1779
and several letters and orders were issued
by the District Minorities Welfare Officer,
Barabanki and the State Government
directed the Principal, Madarsa Darul
Uloom Pir Batawan, Barabanki to settle
accounts and released the payment of
salary to the respondent no.1 for the
abovesaid period but nothing has been done
towards the payment of salary during the
period as stated above. Thereafter, the
respondent no.1 has filed Writ Petition
No.1842 (SS) of 1994, which has been
allowed
vide
impugned
order
dated
10.03.2010.

3. It has been submitted by learned
Counsel for appellants-State that while
passing the impugned order, the learned
Single Judge has erred in law by not taking
into consideration the fact that the writ
petition was filed in the year 1994 in which
on
19.02.1999,
the
appellant-District
Minority Welfare Officer, Barabanki have
been impleaded as respondents after control
being taken by the appellants over the
institution and also on 19.03.1999, the
notices have been issued but the writ
petition was dismissed for want of
prosecution on 12.08.1999. Thereafter, it
was restored on 20.08.1999 and the writ
petition has been finally allowed only on
the basis of the supplementary affidavit
filed by the respondent no.1 placing on
record several orders issued by the State
Government directing the Principal to settle
the account and release the payment of
salary to the respondent no.1.

4. Learned Counsel for the appellantsState has submitted that the learned Single
Judge while allowing the writ petition has
also not considered the fact that two
inquiries were conducted against the
respondent no.1/ writ petitioner in which it
was found that the respondent no.1 did not
performed the duty as teacher from
01.10.1992 to 03.02.1995. In the inquiry, it
was also found that the respondent no.1 did
not work with Mr. Zaheer Anwar, Assistant
Teacher during the said period and the said
fact had also concealed by the respondent
no.1.

5. It has again been submitted by
learned Counsel for the appellants-State
that while allowing the writ petition, the
learned
Single
Judge
has
also
not
considered the fact that the Director
Minority
Welfare
Department,
Uttar
Pradesh issued an order on 30.11.2005 to
conduct an inquiry for verifying the
presence of the respondent no.1 for the
period in question and in the inquiry, it was
found that the salary of the respondent no.1
was not paid due to his absence from duty
though repeated notices were sent by the
Principal and to that effect the inquiry
report dated 08.12.2005 was submitted to
the higher authorities and the respondent
no.1 had resumed the duty on 04.02.1995
after submitting the undertaking that he
would complete the requisite educational
qualification for the post held by him
within two years and to that effect an order
dated 09.02.1995 has also been passed by
the Basic Shiksha Adhikari, Barabanki.

6. Learned Counsel for the appellantsState
has
next
contended
that
the
respondent no.1 holding the post of
Assistant Teacher Aaliya for which the
basic qualification is Fazil or Kamil with
three
years
teaching
experience
and
respondent no.1 do not possess the requisite
qualification and to that effect respondent
no.1 submitted an affidavit before the Basic
Shiksha Adhikari, Barabanki to permit him
to resume his duties with the undertaking
that he will complete his education
qualification for the said post but till date,
1780 INDIAN LAW REPORTS ALLAHABAD SERIES
the respondent no.1 had not completed the
education qualification as provided in the
Government Order. The respondent no.1
admittedly
resumed
his
duties
since
04.02.1995, which itself shows that he did
not performed his duties from 01.10.1992
to 03.02.1995. The respondent no.1 after
resuming his duty from 04.02.1995 had
manipulated his service book from 1990 to
1999 and fixed his annual increments for
the period, he has worked and succeeded in
getting payment of Rs.43,486/- in collusion
with the then District Minority Welfare
Officer.

7. Per contra, learned Counsel
appearing for the respondent no.1 has
submitted that the respondent no.1 had not
manipulated his service book from 19901999 after resuming his duties from
04.02.1995. He has also submitted that the
annual increments were not given to the
respondent
no.1
w.e.f.
1990.
The
respondent no.1 had represented the matter
to the higher authorities as well as the State
Government. The State Government had
scrutinized the matter and called for report
from the authority concerned and thereafter
came to the conclusion that since there is
nothing adverse against the respondent no.1
and neither any disciplinary inquiry nor any
department proceedings have ever been
initiated against the respondent no.1 either
for an alleged absence for the period in
question or for the lack of qualification
and, therefore, the State Government vide
order dated 25.11.1999 directed the District
Minority Welfare Officer, Barabanki that if
there
is
no
departmental/disciplinary
proceedings against the respondent no.1, he
should be awarded annual increments and
also make payment of arrears of salary.

8. Learned Counsel appearing for the
respondent no.1 has further submitted that
in
compliance
of
the
order
dated
25.11.1999, the then District Minority
Welfare Officer, Barabanki inquired the
matter and found that the question of
qualification with respect to appointment of
the respondent no.1 is not applicable
against him and no reasonable ground is
find out for not giving him annual
increments in his salary and, therefore, his
annual increments have been restored vide
order dated 21.10.1999 and the proceedings
are in process for preparation of arrears of
salary bill with effect from October, 1992
up till 03.02.1995.

9. It has again been submitted by
learned
Counsel
appearing
for
the
contesting respondent that the salary of one
Mr. Zaheer Anwar, Assistant Teacher and
Mr.
Siraj
Ahsan,
Assistant
Teacher
working with the petitioner were also
stopped by the appellants but later on, the
salary and arrears were paid to them in the
year 1999 and 1993 respectively whereas
the salary and arrears of the respondent
no.1 from 01.10.1992 to 03.02.1995 have
illegally been denied without assigning any
reason. Therefore, the learned Single Judge
after considering the entire material on
record has found that the respondent no.1 is
legally entitled for the salary and arrears for
the said period as he had performed duty
during the said period.

10.

We
have
considered
the
submissions advanced by learned Counsel
for the parties and perused the record.

11. Counter and rejoinder affidavits
have been exchanged between the parties
and the same are available on record.

12. After perusal of the record, we
found that in the year 1992, the respondent
no.1 had approached this Court by filing
3-5 All. State of U.P. & Anr. Vs. Akbar Naim & Ors.
1781
Writ Petition No.901 (SS) of 1992 on
behalf of all the teachers and employees for
non-payment of their salary which was
withheld by the then Shiksha Adhikari
from July, 1991 onward, which was
allowed vide order dated 13.02.1992 with a
direction to the District Basic Education
Officer, Barabanki to make the payment of
the salary of the teachers and the other
employees who are working in the
institution taking into account the records
of the institution as well as the employees
and last salary bill of staff of the institution.
It was further directed that the arrears of
teachers and other employees should also
be paid and in future salary of the teachers
and other employees should also be paid
regularly. In pursuance to the order dated
13.02.1992, the salary of the respondent
no.1 was paid till September, 1992. Again
the salary of the respondent no.1 was
stopped from the month of October, 1992
and against non-payment of salary, the
respondent no.1 represented his case before
higher authorities and also before the
District Basic Education Officer including
the District Magistrate, Barabanki.

13. It has also been argued by learned
Counsel appearing for respondent no.1 that
inspite of all efforts, when the salary of
respondent no.1 was not paid by the
District Basic Education Officer and by the
other
authorities
concerned
of
the
department, the respondent no.1 agitated
the matter again and ultimately vide an
order dated 03.09.1993 and 27.09.1993, the
District Basic Education Officer had passed
an order stating therein that if the
respondent no.1 submits an affidavit to the
effect that he is working in the institution
from October, 1992 till date and in future
he will also continue to work and put his
signature on the attendance register. Inspite
of the affidavit submitted by the respondent
no.1, the salary of the petitioner has not
been paid.

14. In the instant case, the respondent
no.1 has argued that he is working
regularly in the institution and, therefore,
he is entitled for salary as was received by
him in the past. It has been well recognised
and settled that right to education is a
fundamental right under Part III of the
Constitution of India. It is a pious
obligation of the State and the Society to
provide education at all levels to all citizens
and the State may discharge this obligation
either through State owned or State
recognised educational institutions and may
get the aforesaid activity supplemented by
the private institutions as well.

15.

The
respondent
no.1
is
continuously working in the institution and
the said institution is also taking the service
of the respondent no.1 but the salary has
been denied which is contrary to the
constitutional obligation. It is evident from
the
record
that
the
petitioner
has
continuously work in the institution as a
Teacher for the period in question,
therefore, the respondent no. 1 legitimately
expects to be adequately compensated for
the work he has done.

16. Article 23 of the Constitution of
India prohibits ''Begar', which reads as
under:

"23. Prohibition of traffic in
human beings and forced labour.

(1) Traffic in human beings and
begar and other similar forms of forced
labour
are
prohibited
and
any
contravention of this provision shall be an
offence punishable in accordance with law.

(2) Nothing in this article shall
prevent
the
State
from
imposing
1782 INDIAN LAW REPORTS ALLAHABAD SERIES
compulsory service for public purposes,
and in imposing such service the State shall
not make any discrimination on grounds
only of religion, race, caste or class or any
of them."

17. The aforesaid Article envisages to
solve three unsocial practices prevailing in
the India society namely;

i) Traffic in human beings;

ii) Begar; and

iii) similar forms of forced labour

18. In the present context, we are
concerned with one of the evils of ''Begar.'
The word ''Begar' is of Indian origin and
has
been
adopted
in
the
English
vocabulary. It is understood to be a labour
or service which a person is forced to give
without receiving any remuneration for it.
In other words extracting labour or service
from a person by the government or by
person
in
power
without
giving
remuneration for it amounts to ''Begar.'
''Begar' can take different forms such as
forced
labour,
taking
work
without
remuneration or taking work without
paying
adequate
remuneration
or
remuneration less than the minimum
wages.

19. It is very difficult to formulate a
precise definition of the word 'begar', but
there can be no doubt that it is a form of
forced labour under which a person is
compelled to work without receiving any
remuneration.
Molesworth
describes
'begar' as "labour or service exacted by a
government or person in power without
giving remuneration for it." Wilson's
Glossary of Judicial and Revenue Terms
gives the following meaning of the word
'begar': "a forced labourer, one pressed to
carry burthens for individuals or the public.
Under the old system, when pressed for
public service, no pay was given. The
Begari, though still liable to be pressed for
public objects, now receives pay: Forced
labour for private service is prohibited."
Begar may therefore be loosely described
as labour or service which a person is
forced to give without receiving any
remuneration for it. That was the meaning
of the word 'begar' accepted by a Division
Bench of the Bombay High Court in S.
Vasudevan v. S.D. Mital: AIR 1962 Bom
53. 'Begar' is thus clearly a form of forced
labour. Now it is not merely 'begar' which
is unconstitutionally (sic) prohibited by
Article 23 but also all other similar forms
of forced labour. This Article strikes at
forced labour in whatever form it may
manifest itself, because it is violative of
human dignity and is contrary to basic
human values

20.

In
view
of
the
above
Constitutional mandate no Government or
public body or a person can take work from
anyone without paying remuneration or less
remuneration then admissible or by force as
it would be a clear violation not only of the
fundamental right of a person but of a
much superior human right which inheres
in every individual.

21.

In
People's
Union
for
Democratic Rights v. Union of India,
(1982) 3 SCC 235 : AIR 1982 SC 1473, it
has been observed that Article 23 of the
Constitution of India protects individual not
only against State but against private
citizens and that Begar means labour or
servive which a person is forced to give
without receiving any remuneration or
which is less than minimum wages. It
amounts to violation of fundamental
enshrined under Articles 17, 23 and 24 of
the Constitution. It has further been laid
3-5 All. Safkatuallah Khan Vs. Food Corporation of India & Ors.
1783
down that it is the Constitutional obligation
of the State to take necessary steps to stop
such violation and ensuring observation of
the fundamental right by private individuals
who are transgressing the same.

22. The aforesaid decision has been
followed in State of Gujarat v. Hon'ble
High Court of Gujarat, (1998) 7 SCC 392
and where in context with the convicts it
was held that all prisoners doing labour are
entitle to equitable wages.

23. The learned Single Judge while
passing the judgment and order dated
10.03.2010 found that there is no order of
competent authority for withholding the
salary of writ petitioner/ respondent no.1
for the period 01.10.1992 to 03.02.1995.
The District Magistrate, Barabanki is
neither the competent authority nor having
any jurisdiction in the statute to withhold or
stop the salary of respondent no.1/ writ
petitioner rather the competent authorities
were
continuously
directed
to
make
payment of salary to the writ petitioner for
the period in question.

24. Since the date of appointment i.e.
25.06.1987,
the
writ
petitioner
is
continuously working on the post of
Assistant Teacher in the institution of
respondent no.4 and also is getting salary
from the date of initial appointment except
the period in question. It is admitted fact
that the writ petitioner was not having
experience qualification of three years for
the post of Assistant Teacher at the time of
initial appointment then why disciplinary
proceedings or any action provided in the
statute has not been taken against the writ
petitioner by the competent authority rather
the opposite parties allowed the writ
petitioner to work on the said post of
Assistant Teacher since last several years
and also make payment of salary for the
said post continuously except the period in
question. The salary of the period in
question has been withheld by the opposite
parties is not on the ground of qualification
rather the same has been withheld by the
opposite parties on the ground that the
attendance of the writ petitioner for the said
period has not been verified by the
Principal of the Institution whereas it is
admitted fact that the regular principal of
the Institution was placed under suspension
by the Committee of Management at the
relevant time and the writ petitioner being
senior most Teacher of the Institution was
allowed to work as Officiating Principal of
the Institution.

25. From the perusal of the aforesaid
facts and circumstances, it is clear that the
dispute in question i.e. with respect to nonpayment of arrears of salary to the writ
petitioner for the period 01.10.1992 to
03.02.1995 is having no concerned with
respect to the question of qualification or
experience of the writ petitioner at the time
of appointment on the post of Assistant
Teacher in the Institution.

26. In view of above, we do not find
any illegality or irregularity in the order
dated 10.03.2010 passed by the learned
Single Judge in Writ Petition No.1842 (SS)
of 1994. Accordingly, the instant special
appeal is dismissed.
----------
(2020)03-05ILR A1783
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

WRIT-A No. 7587 of 2006