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Akshya Chand v. The Basic Shiksha Adhikari Sant Ravidas Nagar & Others - WRIT - A No. 38335 of 2003  RD-AH 10408 (26 May 2006)
Court No. 26
Civil Misc. Writ Petition No. 38335 of 2003
The Basic Shiksha Adhikari Sant Ravidar Nagar & another
Hon.Shishir Kumar, J.
By means of the present writ petition the petitioner has approached this Court for issuing a writ of mandamus directing the respondents to permit the petitioner to join his duties as Peon in Sita Devi Junior High School, Sant Ravi Das Nagar in pursuance of the order dated 13.2.2003 passed by the Basic Shiksha Adhikari, Sant Ravi Das Nagar (Annexure 3 to the writ petition). Further issuing a writ of mandamus directing the respondents to pay the arrear of salary from 21.9.2001 and to pay regular salary month to month as and when it falls due forthwith to meet the end of justice.
The petitioner was working as Class IV employee in the aforesaid institution since 1978. A copy of the appointment letter has been annexed as Annexure 1 to the writ petition. Petitioner submits that on account of reasons best known to the respondent No.3, the petitioner and one Manju Khare have been restrained from signing the attendance register with effect from 21.9.2001 and 1.9.2001 respectively. The petitioner moved an application to the Basic Shiksha Adhikari on 26.9.2001. When no steps were taken, the petitioner has also made a complaint to the higher authorities. The petitioner is going to school daily to discharge his duties as Class IV employee but the petitioner is not permitted to sign the attendance register and salary to the petitioner is not being paid from 21.9.2001 then the petitioner filed a writ petition before this Court as Writ Petition No.28186 of 2002. The said writ petition was disposed of finally on 18.7.2002 with an observation that the petitioner will file a fresh detailed representation before the respondent No.1 and the respondent No.1 will decide the same within a period of six weeks. The representation of the petitioner was decided after hearing petitioner, Committee of Management, and the Principal of the institution and the respondent No.2 was directed to permit the petitioner to join his duties immediately. In spite of the aforesaid fact, the respondent No.2 has not permitted the petitioner to join the duties, then again the petitioner has submitted various applications to the relevant authority. The petitioner has not been permitted to join the duties in spite of the order dated 13.2.2003 then the petitioner left with no option, has filed the present writ petition.
The writ petition was entertained and this Court vide its order dated 18.3.2004 had passed an order that as the Basic Education Officer had directed the Principal and Manager to take work from the petitioner on his original post of peon and to pay him salary. It has also been mentioned that from the record it appears that no disciplinary proceeding against the petitioner has been drawn. Taking into consideration the aforesaid fact, the Hon'ble Court had issued an interim mandamus to pay the petitioner regular salary as a peon. It was also left open that it is up to the Committee of Management or to the Principal to take work from the petitioner or not. The principal to that effect has also been directed in the said order that if the respondents wants, they can initiate any disciplinary proceedings.
It has been submitted and brought on record that immediately after the aforesaid order, some disciplinary proceedings have been initiated against the petitioner and the services of the petitioner have been terminated. The order of termination was sent to the Basic Education Officer for granting approval as required under the law but the same has not been approved, meaning thereby that the petitioner is still in service and as such, he is entitled for salary. It is due to the in action of the respondents, Committee of Management and Principal that in spite of the orders issued by this Court and in spite of the order and direction issued by the Education authorities, the petitioner is not being paid salary and has not been permitted to work.
It has been submitted on behalf of the petitioner that the District Basic Education Officer has clearly directed the Committee of Management and the Principal of the Institution to pay the salary to the petitioner in compliance with the order of the High Court. Further a specific finding has been stated that as the order of termination against the petitioner has already been disapproved, therefore, the petitioner will be treated to be in service and is entitled for salary.
On the other hand, the counsel for the respondents, Sri Rajesh Kumar Yadav, who has put an appearance on behalf of the Committee of Management submitted that as the services of the petitioner have already been terminated, therefore, the petitioner is not entitled for salary. It has further been submitted that a review application is still pending before the Basic Education Officer and that has not yet been considered therefore, the petitioner is not entitled for salary.
I have heard learned counsel for the petitioner and Sri Rajesh Kumar Yadav, who appears for the Committee of Management and have perused the record.
From the record, it is clear that the earlier writ petition was disposed of by this Court and on the basis of the order passed by this Court the Education authorities had directed to make the payment to the petitioner but in spite of the direction issued, the salary to the petitioner has not been paid. In the present writ petition also a direction was issued to make the payment of salary to the petitioner though option was given to the Committee of Management not to take work from the petitioner. In spite of the aforesaid fact, the salary has not been paid to the petitioner. It is not the case of the respondents Committee of Management that the services of the petitioner have been terminated or there is any disciplinary enquiry, as a latitude has been given by this Court in the order dated 10.3.2004. It appears that the Committee of Management has initiated the disciplinary proceedings and terminated the services of the petitioner, but they are not able to submit or prove before this Court that order of termination has been approved as provided under the Recognized Basic Schools (Junior High Schools), Rule, 1984 as provided under Section 21 of the said Rule. From the order dated 25th July, 2005 passed by District Basic Adhikari, it is also clear that the order of termination which alleged to have been passed against the petitioner has not been disapproved, therefore, in the eye of law there is no order of termination against the petitioner and the petitioner will be treated to be still in service and as such, is entitled for salary. From the record it is also clear that the petitioner has been deliberately not being permitted to sign on the attendance register by the institution and in spite of the direction issued by this Court the salary has not been paid.
In view of the aforesaid fact and circumstance, the writ petition is disposed of finally with a direction to the Basic Shiksha Adhikari Sant Ravidas Nagar Badhoi to ensure the payment of salary to the petitioner within a period of three weeks including the arrears and will also see that the future salary to the petitioner is also paid month to month when it is due. The District Basic Education Officer respondent No.1 is further directed that if the salary to the petitioner is not being paid within a period specified above, he is directed to initiate action against the Committee of Management and the principal of the institution, which is provided under the law like single operation or will pass an order of superceding of the Committee of Management and to appointment of authorized Controller, to manage the affairs of the institution.
The writ petition is disposed of accordingly.
There shall be no order as to costs.
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