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RAJENDRA PANDEY versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Rajendra Pandey v. State Of U.P. & Others - WRIT - A No. 19852 of 1993 [2007] RD-AH 8175 (1 May 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

Case of the petitioner is that he was appointed on probation for a priod of one year as Peon in Jangli Baba Inter College Garwar Ballia, vide order of appointment dated 18.9.1992, appended as Annexure IV to the writ petition. He claims that the post was advertised and his selection was made in accordance with the recruitment rules.

It is submitted that when salary was not paid to him, he moved representations dated 3.10.1992 and 21.10.1992 to the District Inspector of Schools but no action was taken by him on his representations compelling him under the circumstances to file Civil Misc. Writ No. 1624 of 1993 which was disposed of vide judgment and order dated 7.1.1993 with the direction to the District Inspector of Schools to decide representation of the petitioner within six weeks from the date of production of certified copy of the order.

In compliance of order of this Court dated 7.1.1993, the District Inspector of Schools  after hearing the parties, has rejected the representation of the petitioner vide his order dated 29.4.1993, which is as under :-

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                                      g0 vLi"V

                                     (,l- ih- feJ)

                                               ftyk fo/kky; fujh{kd cfy;k"

         Aggrieved by the order dated 29.4.1993, this petition has been filed.

At the time of admission, the following ad interim order was issued by this Court on 3.6.1993 :-

Hon.S. R.Singh, J

Issue notice.

Meanwhile, the petitioner shall not be refused payment of salary nor shall he be prevented from discharging the duty on the basis of the impugned order dated 29.4.1993 (Annexure 2 to the petition).

Dt. 3.6.93                                           Sd/- S.R. Singh, J"  

  .

Counsel for the petitioner has assailed the impugned order dated 29.4.1993 on the grounds that the appointment of the petitioner on the post of Peon was made by the competant authority after information to the District Inspector of Schools.  His selection was made after advertising the vacancy in newspapers and inviting applications from the local Employment Exchange.  Offer for compassionate appointment was made to Sri Saurabh Kumar dependant of lae Baleshwar Lal, who refused the offer in writing and after selection, the petitioner was selected and letter of appointment dated 18.9.1992 was issued to him. He submitted that the provisions of Regulation 101 inserted by notification dated 30.7.1992 do not prohibit appointment of non-teaching staff by the appointing authority and only prior approval of District Inspector of Schools is condition precedent. He urged that unless and until the appointment of the petitioner is cancelled, the District Inspector of Schools has no power or authority to direct the respondent no. 3 to issue letter of appointment to Sri Tej Narain Ram on the post of Peon, which is held by the petitioner. Moreover, before passing the impugned order dated 29.4.1993,  the District Inspector of Schools did not afford any opportunity of hearing to the petitioner, as such, the same is not sustainable in law.

The petitioner has prayed for the following reliefs :-

i)to issue a writ order or direction in the nature of certiorari quashing the impugned order dated 29.4.1993, Annexure 8 to the writ petition passed by the District Inspector of Schools, Ballia;

ii)to issue a writ order of direction in the nature of mandamus restraining the respondents from appointing Tej Narain Ram on the post of Peon held by the petitioner in the College;

iii) to issue a writ order or direction in the nature of mandamus restraining the respondents from interferring in the functioning and discharge of duties of Peon of the petitioner in the College in pursuance of the order dated 9.4.1993, annexure 10 to the writ petition;

iv) to issue a writ order of direction in the nature of mandamus commanding the respondents to pay the salary of the petitioner since 18.9.1992 i.e. date of joining in the college;

v) to issue a suitbale writ order of direction which this Hon'ble Court may deem fit and proper in the circumstances of the case;

vi) to award the costs of the writ petition to the petitioner.

The counsel for the petitioner has only pressed his prayer no. (iv) regarding payment of salary to the petitioner as according to him the petitioner is already working in view of interim order dated 3.6.1993.

The question of payment of salary to the petitioner is dependent on the fact as to whether the petitioner has actually worked since 18.9.1992 or not.  For resolving this controversy adjudication on the basis of oral and documentary evidence is necessary, It is not feasible for the High Court to take oral and documentary evidence under Article 226 of the Constitution and adjudicate by stepping into the shoes of  the adjudicating  authorities created under the labour laws which forum is created with a specific object to deal with such matters requiring findings of facts.  In the instant case, Court is required to record findings of facts as to whether the appointment of the petitioner was made in accordance with law after following the requisite procedures of Recritment Rules and whether he is entitled to salary and allowances as per law. These findings can be recorded only after appraisal of oral and documentary evidence which is not feasible in writ jurisdiction.

In U.P. State Bridge Corporation Ltd. Vs. U.P. Rajya Setu Nigam S. Karmchari Sangh -(2004)4 SCC-268=2005 AIR SCW-3129, Hon'ble the Apex Court has held that :-

".............Doubtless the issue of alternative remedy should be raised and decided at the earliest oportunity so that a litigant is not prejudiced by the action of the Court since the objection is one in the nature of a demurer.  Nevertheless, even when there has been such a delay where the issue raised requires the resolution of factual controversies, the High Court should not, even when there is a delay, short-circuit the process for effectively determining the facts.  Indeed, the factual controversies which have arisen in the case remain unresolved.  They must be resolved in a manner which is just and fair to both the parties. The High Court was not the appropriate forum for the enforcement of the right and the learned Single Judge in Anand Prakash case had correct refused to entertain the writ petition for such relief."

It is the consistent view of Hon'ble the Supreme Court in Hindustan Steel Works Construction Ltd., and another Vs. Hindustan Steel Works Construction Ltd., Employees Union-(2005)6 SCC-725 and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and another (2005)107 FLR-729 that in case alternate and efficacious remedy is available it should not be bye-passed and writ petition should not be normally entertained by the High        Court under Article 226 of the Constitution of India and the petitioner has to approach this Court after availing alternate remedy.

The petitioner has an alternate and efficacious remedy before the appropriate forum/Court for payment of his salary under Section 6-H(2) of the U.P. Industrial Disputes Act, 1947 or under any other labour law dealing with delay or deduction in payment of salary as held in Chandrama Singh V. Managing Director U.P.Co-operative Union Lucknow and others- (1991)1UPLBEC(2)-898.  

For the reasons stated above, I am not inclined to interfere in the matter in exercise of powers under Article 226 of the Constitution as it requires findings of facts to be recorded on the basis of of oral and documentary evidence.

Accordingly, the writ petition is dismissed on the ground of availability of alternative remedy.   No order as to costs.

Dated 1.5.2007

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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