# Upma Srivastava v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 26
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-20
- **Case number:** Civil Misc. Writ Petition No. 1181 of 2012
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/upma-srivastava-v-state-of-u-p-and-others-42115
- **Pages:** 3

## Headnote

Constitution of India, Article 226-prolong
suspension-without
any
progress
in
disciplinary
action
for
considerable
period
of
4
years-non
payment
of
subsistence
allowance
without
discharging any duty-highly derogatory,
arbitrary
and
impertinent-arrears
of
salary from date of suspension till
reinstatement
be
recovered
from
personal benefit of Basic Education
Officer-petition allowed with cost of Rs.

## Text

26 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.01.2012

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Civil Misc. Writ Petition No. 1181 of 2012

Upma Srivastava

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

Counsel for the Petitioner:
Sri Manish Chand Umrao

Counsel for the Respondents:
C.S.C.
Sri Neeraj Mishra
Sri Shamsher Maurya
Sri P.D.Tripathi

Constitution of India, Article 226-prolong
suspension-without
any
progress
in
disciplinary
action
for
considerable
period
of
4
years-non
payment
of
subsistence
allowance
without
discharging any duty-highly derogatory,
arbitrary
and
impertinent-arrears
of
salary from date of suspension till
reinstatement
be
recovered
from
personal benefit of Basic Education
Officer-petition allowed with cost of Rs.
25000.

Held: Para 5

This inaction, in my view, cannot be
without any reason or indeliberate. In
fact no justification, explanation or
reason whatsoever has been given for
this kind of inaction on the part of
respondents. The Court is thus justified
in believing that it is deliberate and
surpasses the territory of arbitrariness,
unreasonableness and irrationality. Such
an official cannot be allowed to go scotfree without accounting for the public
funds.

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

1. Pursuant to this Court's order
dated
10.01.2012,
Sri
J.K.Verma,
presently working as Basic Shiksha
Adhikari, Shahjahanpur, as identified by
Sri P.D.Tripathi, Advodate is present. It
is admitted by him that after suspension
order dated 8.9.2008 no further action
was taken against the petitioner and no
charge sheet was ever issued. However,
he submitted that after receiving the
order dated 10.01.2012 passed by this
Court inquiring as to what action has
been taken in the matter and why
petitioner
has
been
kept
under
suspension for such a long time without
any inquiry in the matter, an order has
been passed revoking suspension on
13.1.2012
pursuant
whereto
the
petitioner has joined.

2. In the affidavit filed by
respondent No.3 nothing has been said as
to why suspension of the petitioner
continued for more than 3 years and what
disciplinary action proceeded in the
meanwhile.

3. In the short counter affidavit
sworn by Sri J.K.Verma, Basic Shiksha
Adhikari,
Shahjahanpur
(hereinafter
referred to as "BSA") he has said that
petitioner was placed under suspension
on account of her unauthorized absence
and Deputy Basic Shiksha Adhikari was
appointed as enquiry officer. A report
was submitted by Finance and Accounts
Officer,
Basic
Shiksha
16.10.2008
wherein he has endorsed observation
made by Additional District Magistrate
and has also approved the proposed
action
against
responsible
persons.
However even this affidavit nowhere
shows as to when the petitioner was
1 All] Upma Srivastava V. State of U.P. and others
27
issued any charge sheet, whether any oral
enquiry was ever conducted or not and
what happened after order of suspension
was passed on 8.9.2008 whereafter
Deputy District Basic Education Officer,
Shahjahanpur was appointed as enquiry
officer.

4. Apparently it appears that after
placing the petitioner under suspension,
Educational authorities slept over the
matter, allowed the petitioner to enjoy
subsistence allowance for more than
three
years
without
any
enquiry
whatsoever creating a legal lacuna in her
favour so that as an when she comes to
this Court against inaction on the part of
respondent, she may get an order in her
favour.

5. This Court, however, when
summoned respondents No.2 and 3 with
a clear direction to show as to what
action was taken in this matter and why
petitioner
has
been
kept
under
suspension for such a long time without
any inquiry, in order to cover up entire
inaction and wastage of public revenue
in the shape of payment of subsistence
allowance and later on full salary, passed
revocation
order
on
13.01.2012
reinstating the petitioner. This kind of
attitude on the part of respondent No.3,
which has also gone unmonitored by
respondent
No.2
is
really
highly
derogatory, arbitrary and impertinent.
They are holding public office and
custodian of public funds. They cannot
meddle with public funds by simply
distributing it to the persons not doing
any work at all. Basic education has been
given a very important role in our
Constitution
also.
Earlier
directive
principles requires that State shall take
steps
for
providing
free
primary
education to young people, but later on
realizing its importance, which may
reflect in the literacy rate of the country,
right to primary education has been made
a fundamental right vide Article 21-A of
Constitution. Even the parents are under
a constitutional duty to ensure primary
education
to
their
wards.
This
constitutional
obligation
cannot
be
discharged unless effective machinery
and infrastructure is made available. This
includes
availability
of
competent
teaching staff in the schools, their regular
presence and devoted attendance for
duty. Judicial cognizance can be taken,
(particularly in the light of a large
number of cases pending before this
Court in which State Government has
taken a stand) that thousands and
thousands vacancies of primary teachers
are lying. It is more shameful that
primary institutions, which already have
a teacher, are made without him/her on
account of an action of educational
authority for which he does not feel any
accountability or responsibility. He made
the institution without teacher by placing
the petitioner under suspension and then
allow that situation to continue for years
together. If the petitioner was not
performing her job, it was a case of
urgent attention and action so that
another
teacher
could
have
been
appointed to do the job but on the one
hand
educational
authorities,
the
respondent No.3 shown as he intends to
take action for ensuring proper presence
of teacher in the school but in effect he
failed in entirety. This inaction, in my
view, cannot be without any reason or
indeliberate. In fact no justification,
explanation or reason whatsoever has
been given for this kind of inaction on
the part of respondents. The Court is thus
justified in believing that it is deliberate
28 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
and
surpasses
the
territory
of
arbitrariness,
unreasonableness
and
irrationality. Such an official cannot be
allowed
to
go
scot-free
without
accounting for the public funds.

6. In view of the above discussion,
this writ petition is disposed of with the
following direction:

i. For the entire period the petitioner
remained under suspension she shall be
entitled for full salary since suspension is
wholly unjustified as no departmental
enquiry was ever conducted against her.

ii. The amount of salary paid to the
petitioner without actual discharge of
duty on and after 8.9.2008 i.e. after
suspension till reinstatement shall be
realized from respondent No.3 i.e. the
officer presently holding the office who
is admittedly working in the said office
since 2007.

iii. The Secretary, Basic Education
shall also initiate departmental enquiry
against respondent No.3 as to why and in
what circumstances, though petitioner
was placed under suspension, but no
enquiry was conducted against her, and
thereafter a situation was created in
which she got reinstated without any
liability or responsibility. The aforesaid
enquiry shall be completed by Secretary,
Basic Education within three months and
the ultimate order passed by it shall be
placed before this Court after three
months. This case will be listed in the
week commencing 14th May, 2012 only
for this purpose and nothing else.

iv. The petitioner shall also be
entitled to cost which I quantify to
Rs.25,000/- which shall be paid at the
first instance by respondent No.1 but it
would have liberty to recover the same
from respondent No.3, the present
incumbent holding the said office.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 17.01.2012

BEFORE
THE HON'BLE SHABIHUL HASNAIN,J.

Consolidation No. - 1393 of 1980

Dwarika Prasad and others ...Petitioner
Versus
Shesh Narain and others ...Respondents

Counsel for the Petitioner:
Sri P.L. Misra
Sri A.K. Verma
Sri Jagdish Singh
Sri R.S. Tripathi

Counsel for the Respondents:
C.S.C.
Sri G.P. Tripathi
Sri Rakesh Kumar
Sri Satish Tripathi
Sri Ved Prakesh Shukla.

Constitution
of
India,
Article
226Practice and Procedure-Dismissal of Writ
Petition in Default-once restored on
original number the status on date of
dismissal automatically revived-no need
of
passing
specific
order-admitted
petition-confirmed interim order-never
vacated prior to dismissal of defaultautomatically revived-no need of passing
further extension order.

Held: Para 11

In view of what has been discussed
above, there appears no need to pass
any fresh orders. I have already held
that when a petition is restored to its
original number, it gets the status which