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Uma Shankar Sharma v. Basic Shiksha Adhikari & Others - WRIT - A No. 31931 of 1999  RD-AH 19768 (21 November 2006)
Civil Misc. Writ Petition No. 31931 of 1999
Uma Shanker Sharma
The Basic Shiksha Adhikari,
Bulandshahar and Ors.
Hon'ble Pankaj Mithal, J.
Heard learned counsel for the petitioner, Sri Mahendra Pratap, counsel for respondent No.1, Sri Vipul Kumar, counsel for respondent No. 3 and the learned Standing counsel.
The petitioner was appointed as a Clerk in N. P. Junior High School, Parkana, District Bulandshahar on 1.7.1976. It is stated that he had voluntarily tendered his resignation on 20.5.1978 which was accepted by the Committee of Management vide resolution dated 30.6.1978. The petitioner contends that he had never resigned voluntarily and he was forced to tender his resignation. In respect whereof he has even made a complaint on 17.7.1978 to the District Basic Shiksha Adhikari, and finally the District Basic Shiksha Adhikari vide order dated 16.5.1980 (Annexure 2 to the writ petition) held that the resignation of the petitioner was never duly accepted by the Committee of Management and the resolution of the Committee of Management dated 30.6.1978 in this regard is invalid. Thus, there is no resignation of the petitioner and the petitioner is entitled to continue in service and be paid salary regularly.
The payment of salary to the petitioner was withheld from June 1993 on the orders of the District Basic Adhikari. Therefore, the petitioner had filed Writ Petition No. 4165 of 1998 directing the Committee of Management and the District Basic Shiksha Adhikari to pay his salary regularly, which had been stopped from the month of June 1993. The said writ petition was disposed of by the High Court vide judgment and order dated 16.11.1998 with the direction to the District Basic Shiksha Adhikari to decide the claim of the petitioner.
In pursuance of the above direction of this High Court, the District Basic Shiksha Adhikari, by the impugned order dated 22.4.1999, has rejected the petitioner's representation stating that the petitioner had voluntarily resigned on 20.5.1978. The salary of the petitioner was stopped under the orders of the District Basic Shiksha Adhikari w.e.f. June 1993 and since the said order was not challenged by the petitioner till 1998, when the previous writ petition was filed, the said order has attained finality and as such the petitioner cannot claim salary at this stage. Thirdly, it has been stated that the post of Clerk on which petitioner was working and was subsequently filled up by the appointment of one Sri Virendra Pal Gupta and, therefore, the petitioner cannot be permitted to work and paid salary. Lastly the petitioner has not worked at the institution since the date of his resignation i.e. 20.5.1978 and, therefore, also no salary is due and payable to the petitioner.
Learned counsel for the petitioner has argued that in view of the order of District Basic Shiksha Adhikari dated 16.5.1980 on record, the petitioner cannot be denied salary on the ground that he has voluntarily resigned. The said order of the District Basic Shiksha Adhikari has attained finality and has not been cancelled, revoked or set aside. The said order declares in unequivocal terms that the resignation of the petitioner was never validly accepted by the Committee of Management. A perusal of the record of the writ petition and the impugned order reveals that undoubtedly the order of the District Basic Shiksha Adhikari dated 16.5.1980 is final and, therefore, it cannot be said that the petitioner has resigned from the post of peon at the institution. Admittedly, the services of the petitioner have not been terminated on any other ground not even on the ground that he has absconded from service or has abandoned his service. The petitioner is, therefore, entitled to function as peon at the institution and to draw the salary in accordance with law.
The District Basic Shiksha Adhikari in the impugned order has erroneously held that the earlier order of the District Basic Shiksha Adhikari dated 16.5.1980 is not correct in as much as he was not sitting in an appeal or in review over the said decision of the District Basic Shiksha Adhikari. Therefore, the District Basic Shiksha Adhikari was not correct and justified in treating the earlier order of District Basic Shiksha Adhikari as invalid. Further finding recorded in the impugned order that the petitioner has voluntarily resigned in as much as he has not lodged any F.I.R. with regard to his compliant for forcible resignation is clearly within the teeth of the order of the District Basic Shiksha Adhikari dated 16.5.1980 and as such is unsustainable in law.
Now the issue is whether the petitioner has worked as peon at the institution after 20.5.1978 or he has abandoned his service is a factual matter which has to be considered and decide by the District Basic Shiksha Adhikari, Bulandshahar. The other aspect as to whether the post held by the petitioner has been lawfully filled up by the Committee of Management by making a fresh appointment, is also a matter which requires finding of fact by the District Basic Shiksha Adhikari. Therefore, without commenting on the above two issues on merits, the writ petition is disposed of with the direction to the District Basic Shiksha Adhikari, Bulandshahar to re-consider and decide the matter afresh in the light of the observation made herein above and not to withhold the petitioner's salary on the ground of his resignation dated 20.5.1978 .
The impugned order dated 22.4.1999 is quashed. The writ petition is accordingly, allowed in part.
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