# The Committee of Management A.N.I.C. Gorakhpur & Anr v. The State of U.P. & Ors

- **Citation:** (2015) 3 ILRA 1059
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015
- **Case number:** Special Appeal No. 638 of 2015
- **Bench:** Arun Tandon, Shashi Kant
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-committee-of-management-a-n-i-c-gorakhpur-anr-v-the-state-of-u-p-ors-43349
- **Pages:** 4

## Headnote

Constitution of India, Art.-226-Salaryteacher
in
aided
institution
if
management-decides not to take workliability
of
salary-upon
management
should not be fastened such liability
upon state-exchequer-order by Single
Judge modified to the extent.
1060
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-15
We are, therefore, of the opinion that the
order of the Hon'ble Single Judge, in so far as
it
directs
the
payment
of
salary
to
respondent nos. 3 and 4 through State
exchequer even when the management
decides not to take work from the said
respondents, cannot be legally sustained.
Therefore,
we
provide
that
if
the
management still insists upon to not to take
work from the respondent nos. 3 and 4, then
it must also bear the consequences of
payment of salary to the employee/teacher
concerned from its own resources. The
payment shall not be made from the State
exchequer so long as the respondent nos. 3
and 4 are not permitted to discharge their
official duty in the institution.
Case Law discussed:
1999 (1) UPLBEC 1

## Text

3 All] Smt. Rubina & Anr. Vs. State of U.P. & Anr.
1059
decreed by the court of Civil Judge, Ist Class,
Tikamgarh, M.P. That decree is still in effect.
But wife (/revisionist Rubina) had not
obeyed the decree of the court, and kept
herself away from her husband. During
hearing of this petition of maintenance
Family Court had dismissed the petition for
maintenance u/s 125 CrPC by impugned
order on the ground that case of restitution of
conjugal rights of husband had been decreed,
which is proof of the fact that wife Rubina
Bano had deserted her husband without any
sufficient reason, therefore her petition u/s
125 CrPC is not maintainable. Aggrieved by
this impugned revisionists have preferred
present revision.
3. I have heard the learned counsel
for the revisionists and A.G.A. and
perused the records.
4. Learned counsel for the revisionist
contended that in spite of decree of
restitution of conjugal rights petition u/s 125
CrPC is maintainable; and secondly that
petition maintenance should have been
decided on merits irrespective of judgment of
Family Court. Therefore impugned order is
erroneous and revision should be allowed.
5.
The judgment and decree of
competent civil court has to be followed in
any case. As against it the proceeding under
section 125 CrPC is a summary proceeding
which has no legal sanctity against the
judgment of formal decree of competent civil
court. Unless reversed or set aside, the decree
and findings of competent civil court is
binding on its parties, irrespective of the
pendency or findings of any summary
proceeding like petition u/s 125 CrPC.
6. In present matter competent civil
court (Civil Judge, Ist Class, Tikamgarh,
M.P. had decreed civil case no. 6-A/ 2007
Mohd. Javed v. Smt. Rubina Bano), for
restitution of conjugal rights, by judgment
dated 17-12-2008, with finding that Smt.
Rubina Bano had not been treated with
cruelty by her husband Javed, and that she
is living separately without any sufficient
reason. Any contrary finding of judgment of
summary proceeding in case u/s 125 CrPC
cannot overrule the final decree of
competent civil court. Therefore learned
Principal
Judge,
family
Court
had
committed illegality by passing impugned
order and dismissing the petition u/s 125
CrPC by impugned order. There appears no
error or impropriety in impugned judgment
that may require interference in impugned
order by exercise of revisional jurisdiction.
Therefore the revision is dismissed.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.09.2015
BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE SHASHI KANT, J.
Special Appeal No. 638 of 2015
The Committee of Management A.N.I.C.
Gorakhpur & Anr.
 ...Appellants
Versus
The State of U.P. & Ors.
...Respondents
Counsel for the Appellants:
Sri Radha Kant Ojha, Sri Akhilesh Kumar
Singh, Sri Shivendu Ojha
Counsel for the Respondents:
C.S.C., Sri A.B. Singh
Constitution of India, Art.-226-Salaryteacher
in
aided
institution
if
management-decides not to take workliability
of
salary-upon
management
should not be fastened such liability
upon state-exchequer-order by Single
Judge modified to the extent.
1060
 INDIAN LAW REPORTS ALLAHABAD SERIES
Held: Para-15
We are, therefore, of the opinion that the
order of the Hon'ble Single Judge, in so far as
it
directs
the
payment
of
salary
to
respondent nos. 3 and 4 through State
exchequer even when the management
decides not to take work from the said
respondents, cannot be legally sustained.
Therefore,
we
provide
that
if
the
management still insists upon to not to take
work from the respondent nos. 3 and 4, then
it must also bear the consequences of
payment of salary to the employee/teacher
concerned from its own resources. The
payment shall not be made from the State
exchequer so long as the respondent nos. 3
and 4 are not permitted to discharge their
official duty in the institution.
Case Law discussed:
1999 (1) UPLBEC 1
(Delivered by Hon'ble Arun Tandon, J.)
1. This special appeal is directed
against the judgment and order of the
Hon'ble Single Judge dated 21.08.2015.
2. The facts giving rise to the
present special appeal are as follows:
Abhay Nandan Inter College, Vishnu
Mandir, Medical College Road, Gorakhpur
is a recognized and aided Intermediate
College, which claims to be a minority
institution. The institution is stated to have
passed an order for terminating the services
of respondent nos. 3 and 4, who were
employed as Assistant Teacher on ad hoc
basis. This order, according to the committee
of management, was made in compliance to
the order of the Hon'ble High Court passed in
Writ Petition No. 36165 of 1995. The
decision so taken by the committee of
management was annulled by the District
Inspector of Schools, Gorakhpur vide order
dated 14.08.2015. The District Inspector of
Schools also went on to cancel the
advertisement which had been published for
making fresh ad hoc appointment against the
posts held by the aforesaid two respondents.
3. The committee of management not
being satisfied with the order of the District
Inspector of Schools, file Writ Petition No.
47407 of 2015. The Hon'ble Single Judge
under the order impugned dated 21.08.2015
has recorded that the matter requires
consideration and thereafter, on the statement
made by the Senior Advocate appearing on
behalf of the committee of management, it
has been recorded that it shall be open to the
committee of management i.e. the petitioner
to take work or not to take work from the
private respondents, but they shall be entitled
to their salary, which shall not be stopped.
The committee of management has also been
restrained from making any fresh selection
on the post held by respondent nos. 3 and 4.
4. On behalf of respondent nos. 3
and 4 it is stated that the order has been
passed on a statement made by counsel
for the petitioner himself and therefore it
does not lie in the mouth of the petitioner
to challenge the direction for payment of
salary even if the management decides not
to take work from the teachers concerned
and because there cannot be double
payment of salary against the same post,
there can be no valid objection to the
further restrain on fresh appointments on
the posts held by respondent nos. 3 and 4.
5. In our opinion a very serious issue
reflecting upon public money has arisen
in the present appeal.
6. The right of the employer to take
work or not to take work from his
employee and to continue to make
payment of salary without taking work is
well recognized. But this general principle
3 All] The Committee of Management A.N.I.C. Gorakhpur & Anr. Vs. The State of U.P. & Ors.
1061
may not be applicable in respect of
recognized
and
aided
intermediate
colleges and other such aided institutions
where the liability of payment of salary is
taken over by the State Government.
7.
As a matter of fact in recognized
and aided intermediate colleges and other
such institutions, where liability of payment
of salary is taken over by the State
Government, namely, private aided degree
colleges
etc.,
there
is
a
tripartite
arrangement. The first party i.e. the
employer is the management which has a
right to appoint the employee after due
procedure and to take work. Second party in
the agreement is the teacher/employee, who
works in such an institution, who has right
to be paid his salary if his appointment is in
accordance with law and there is no legal
justification for withholding his payment
even if the management does not take work
from him, and there is a third party i.e. the
State Government, which takes over the
liability of payment of salary to the staff and
teachers of such recognized and aided
institutions. In the case of intermediate
colleges such liability of payment of salary
has been taken over by the State
Government vide U.P. Act No. 24 of 1971.
8. We may record that the liability
of payment of salary, which has been
taken over by the State Government, is
only in respect of teachers and staff who
are appointed against sanctioned posts.
The issue in that regard has been settled
by the Full Bench of this Court in the case
of Gopal Dubey vs. District Inspector of
Schools, Maharajganj, reported in 1999
(1) UPLBEC 1.
9. There is another aspect to this
liability, namely, such responsibility to
release the payment of salary to the
teacher/employee concerned would only
arise if such teacher/employee actually
discharges his duties in the institution
unless he is sanctioned leave permissible
under the rules.
10. If the management of the
institution decides on its own not to take
work from such teacher/employee, then
there
cannot
be
a
corresponding
obligation upon the State Government to
make
payment
of
salary
to
the
teacher/employee concerned when he is
actually not discharge his duties in the
institution.
11. If the decision to not to take
work from the employee concerned is of
the management of the institution in its
own discretion, then the liability of
payment of salary to such person shall
also be upon the management alone,
inasmuch
the
management
of
the
institution while exercising its power of
the employer to not to take work cannot
transfer the financial obligation upon the
State Government.
12. Teachers and employees of
aided institutions are paid salary from
public exchequer which is public money.
It cannot be permitted to be paid without
actual
discharge
of
duties
by
the
person/employee concerned.
13. We have, therefore, no hesitation
to record that even if the Hon'ble Single
Judge has proceeded on the statement
made by the counsel for the management,
the High Court cannot in exercise of its
power
under
Article
226
of
the
Constitution of India issue a direction to
the State Government to make payment of
salary to an employee/teacher who does
not discharge his duties in the institution.
1062
 INDIAN LAW REPORTS ALLAHABAD SERIES
If the restrain on the discharge of duties
and responsibility by the teacher has been
put by the management of the institution,
then the management also must suffer the
consequences.
14.
We have no hesitation to record
that the High Court, while passing the order
permits the management of an aided
recognized institution to take or not to take
work from the teacher/employee concerned,
must couple the said direction with a further
direction that it shall be responsibility of the
management to make payment of salary to
such teacher/employee from whom it decides
not to take work. The State Government may
not be fastened with the responsibility to
make payment of such employee, who
actually does not work because of the order
of the management.
15.
We are, therefore, of the opinion
that the order of the Hon'ble Single Judge in
so far as it directs the payment of salary to
respondent nos. 3 and 4 through State
exchequer even when the management
decides not to take work from the said
respondents, cannot be legally sustained.
Therefore,
we
provide
that
if
the
management still insists upon to not to take
work from the respondent nos. 3 and 4, then
it must also bear the consequences of
payment of salary to the employee/teacher
concerned from its own resources. The
payment shall not be made from the State
exchequer so long as the respondent nos. 3
and 4 are not permitted to discharge their
official duty in the institution.
16. This order shall not prejudice the
right of the petitioner to make an application
before the Hon'ble Single Judge or for
modification of the order under appeal, as
may be necessary, inasmuch as the Hon'ble
Single Judge has proceeded on the
concession of the counsel for the petitioner.
In view of what has been recorded above, the
counsel may like to withdraw the concession
so made. Petitioner is also at liberty to file
such further application as may be necessary.
17. With the aforesaid direction, this
appeal is disposed of. The order of the
Hon'ble Single Judge stands modified to
the extent indicated above.
--------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.09.2015
BEFORE
THE HON'BLE DR. DHANANJAYA YESHWANT
CHANDRACHUD, C.J.
THE HON'BLE DILIP GUPTA, J.
THE HON'BLE YASHWANT VARMA, J.
Special Appeal No. 1140 of 2008
with
Special Appeal No. 1137 of 2008, Special
Appeal No. 1099 of 2008 and Special Appeal
No. 1145 of 2008
Ashutosh Shrotriya & Ors. ...Appellants
Versus
Vice-Chancellor,
Dr.
B.R.
Ambedkar
University Agra & Ors.
...Opp. Parties
Counsel for the Appellants:
Sri V.D. Dubey
Counsel for the Respondents:
Sri C.B. Yadav, Add. Advocate General, Sri
Shashank Shekhar, Addl. C.S.C., Sri Sanjay
Kumar Singh, Sri Manish Goyal, Sri Rahul
Agarwal, Amicus Curiae.
Constitution of India. Art.-226-Writ Petitioninviting counter affidavit without interim
order-whether amenable under Special
Appeal?-held-'No'.
Held: Para-45
In view of the aforesaid discussions, we
answer the question of law referred to