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Shivendra Kumar Tripathi v. State Of U.P. Thru' Director Of Education & Others - WRIT - A No. 7670 of 2002  RD-AH 10228 (24 May 2006)
CIVIL MISC. WRIT PETITION NO. 7670 OF 2002
Shrivendra Kumar Tripathi
State of U.P. and others.
HON. SHISHIR KUMAR, J.
The present writ petition has been filed for issuing a writ of mandamus directing respondent no.3 to make the compliance of the appointment letter dated 9.8.1995 passed by the Selection Committee constituted under the Dying in Harness Rules under Chapter-III of Regulations 101 to 107, Annexure-2 to the writ petition and comply the payment order dated 27.4.1996, Annexure-4 to the writ petition.
The facts arising out of the writ petition are that late Sri Upendra Kumar Tripathi was a confirmed employee as Assistant Teacher in L.T. Grade in Adarsh Inter College, Maheshpur district- Azamgarh. He was unmarried and living along with his family members like father, mother brother and sister and he was the only bread earner of the family. Late Sri Upendra Kumar Tripathi all of a sudden expired on 28.1.1981 during the service. At the time of the death, the petitioner as well as the sister of the petitioner was minor. The petitioner moved an application before respondent no.5 for consideration of the case of the petitioner under the Dying in Harness Rules. The application of the petitioner was accepted on 10.1.1995 and an appointment letter was issued by respondent no.4 to the petitioner. Copy of the same has been filed as Annexure-1 to the writ petition. It has further been submitted that a Selection Committee consisting of District Basic Shiksha Adhikari , Accounts Officer and District Inspector of Schools was constituted and the case of the petitioner was considered and a decision of that effect has been taken to appoint the petitioner. Copy of the same has been filed as Annesure-2 to the writ petition. The petitioner was permitted to join at 10.8.1995. Copy of the same has been annexed as Annexure-3 to the writ petition. Then the District Inspector of Schools by order dated 27.4.1996 passed an order of payment of salary. Copy of the same has been filed as Annexure-4 to the writ petition. The petitioner submitted a representation on 3.9.1996 to the authority-concerned for payment of his salary. The case of the petitioner was also considered by the Deputy Director of Education (Madhyamik) U.P. Lucknow dated 6.9.2000 and the District Inspector of Schools, Azamgarh was directed to consider the petitioner's case under Dying in Harness Rules. The petitioner was appointed as a teacher in L.T. Grade on 10.1.1995 and the said appointment was approved by the Selection Committee of the district level under Regulations 101 to 107 of Chapter-III of the Regulation and the petitioner was permitted to join. But inspite of the repeated requests and representation respondent no.3 in an illegal and arbitrary manner was not making the payment of salary to the petitioner.Though after the explanation submitted by the District Inspector of Schools, the Addl. Director of Education by order-dated 27.5.2000 has passed the order to appoint the petitioner. The appointment of the petitioner is under the Dying in Harness Rules and due to the inaction of the respondents, the petitioner is suffering financial crisis, as the petitioner is the only earning member in the family. As the salary was not paid the petitioner has approached this Court.
While entertaining the writ petition this Court has passed an order on 20.2.2002 directing the respondents to file a counter affidavit. It has been submitted on behalf of the petitioner that relating to the appointment of the petitioner, the case of the petitioner was recommended for consideration by the Committee of Management to the Selection Committee constituted under Regulations 101 to 107 and the case of the petitioner was considered for appointment after following the proper procedure as provided and the appointment letter was issued by the Committee of Management dated 10.1.1995 and the same was approved by the Selection Committee on 9.8.1995. The action of respondent no.3 is wholly arbitrary in not making the payment of salary to the petitioner because the explanation submitted by the District Inspector of Schools, the Additional Director of Education has passed the order to appoint the petitioner, therefore, it cannot be said at this stage that there is any illegality in the appointment of the petitioner. From the record annexed to the writ petition, the petitioner submits that from the perusal of the order dated 27.4.1996, it is learnt that the appointment of the petitioner has been approved. In such a situation the petitioner submits that there is no occasion for non- payment of salary in spite of the fact that the petitioner is still working . The petitioner has placed reliance upon a judgment of this Court reported in 2000(1) UPLBEC 634 Sanjeev Kumar Dubey Vs. District Inspector of Schools and the decision reported in 2000 (1) ESC Page 448, Pushpendra Singh Vs. Regional Manager, UPSRTC. Taking into consideration the aforesaid decisions, the petitioner submits that the very object of the appointment under the Dying in Harness Rules is to give financial assistance to the family members due to sudden demise of the earning member of the family.
A counter affidavit has been filed on behalf of the respondents, in para 3 of the counter affidavit it has been stated that as the petitioner is not the dependent of the deceased and the petitioner has been appointed in violation of the Government Order but as no document is available in the office of the District Inspector of Schools and subsequently on the basis of the documents submitted a Committee was constituted on 25.10.2002 and the resolution dated 9.5.1995 which relates to the appointment of the petitioner has been considered and it has been found that the appointment of the petitioner is not in accordance with law as such, he is not entitled for salary. Further it has been stated in the counter affidavit that the matter is under consideration and no final order has been passed and the decision of 9.8.1995 has not yet been cancelled. There is no proper appointment of the petitioner as such no salary has been paid.
I have heard the learned counsel for the petitioner and the Standing Counsel and have perused the record. From the record it appears that on an application made by the petitioner, the Selection Committee consisting of 3 officers of the Education Department was constituted on 9.8.1995 and the case of the petitioner was considered and decided to appoint the petitioner. Subsequently on the basis of the aforesaid letter the petitioner joined the institution on 10.8.1995. It appears that due to the change of the District Inspector of Schools, the Committee of Management has not issued a formal appointment letter in favour of the petitioner after decision taken by the Committee and due to the aforesaid fact, the salary to the petitioner in spite of the fact that the petitioner is working has not been paid. The District Inspector of Schools vide letter dated 10.5.2000 addressed to the Director of Education (Madhyamik) has intimated all the facts regarding issuance of the appointment and for payment of salary. In the said letter it has clearly been mentioned that the Selection Committee on 9.8.1995 has taken a decision for appointment of the petitioner and all the relevant record is in the office of the District Inspector of Schools. The Director of Education in reply to the said letter of the District Inspector of Schools vide its letter dated 27.5.2000 has directed the District Inspector of Schools to act according to rules under Regulations 101 to 107 of Chapter III of Intermediate Education Act. The principal of the institution vide its letter-dated 18.8.2001 has verified that the petitioner is working from 10.8.1995.
As the petitioner has already been selected and is working, therefore, in my opinion the petitioner is entitled for salary. The present writ petition is disposed of finally with a direction to respondent no.3 to act in accordance with the reply of the letter sent by the Director of Education as the respondent no.3 himself has verified the selection and appointment of the petitioner under the Dying in Harness Rules. It is not the case of the respondents that the appointment of the petitioner is illegal and the approval of the petitioner granted by the District Inspector of Schools has been withdrawn or cancelled. The specific averment has been made in the counter affidavit that the approval of the District Magistrate has not yet been canceled
In view of the aforesaid fact, a writ of mandamus is issued to respondent no.3 to pay the salary to the petitioner and he will also take into consideration the said fact that how and under what circumstances the formal letter of appointment has not been issued in spite of the approval granted by respondent no.3. The writ petition is disposed of accordingly.
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