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Bal Ram & Others v. State Of U.P.& Others - WRIT - A No. 29075 of 2000 [2006] RD-AH 12256 (26 July 2006)


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Court No. 1

Civil Misc. Writ Petition No. 41555 of 1999

Mahesh Prasad Kushwaha vs. Zila Basic Shiksha Adhikari & others


Hon'ble Ran Vijai Singh, J.

This writ petition  has been filed by one Sri Mahesh Prasad Kushwaha seeking writ of mandamus commanding the respondents, specially  respondent nos. 2 and 3 to make the payment of salary to the petitioner  on the post of Assistant Teacher  in Primary School, Sanwara,district Ballia w.e.f 2.7.1996.

The case of the petitioner is that his father  who happened to be a teacher died on 6.1.1984. At the time  of his death the petitioner was of 10 years. He has passed his Intermediate Examination in the year 1992 and thereafter moved an application for seeking his appointment under the  dying-in-harness Rules in place of his father since (deceased).  In view  of the Government  Order  dated 23.3.1990 which has been issued under  the provision of Section 13 (1) of the U.P. Basic Education Act, 1972, a consequential appointment letter was issued  to the petitioner on  2.7.1996. The petitioner thereafter moved several applications for payment of his  salary. In one of the  application dated 8.9.1998, a report has been sought and  an order has been passed by B.S.A. theron on 10.9.1998 for holding an enquiry. Pursuant to the same an enquiry  has been  made by the Deputy Inspector of Schools and he has submitted  his report  on 15.9.1998. According  to him as per spot inspection the appointment of the petitioner appears to be genuine. He has also recommended for payment of salary. The petitioner states that thereafter District Basic Education Officer has passed an order on 6.5.1999 for payment of salary to the petitioner but till date no salary has been paid.

Counter affidavit has been filed by Sri N.D. Rai, learned counsel for the respondents No. 1,2 and 3 wherein it has been stated that after the death of Raj Deo Ram, petitioner's father, the petitioner's elder brother  Sri Suresh Prasad has been appointed on 28.7.1990 and is getting his salary. In para 3 (dha) of the counter affidavit it has been stated that the District Basic Education Officer  has summoned both the brothers along with their original appointment letters and other relevant materials in support  of their case. Though the petitioner appeared but he did not produce  the required material as directed by the District basic Education Officer. However, petitioner's real brother  Suresh Prasaed  did not appear before him and due to pendency of the writ petition  no decision could be taken. The case of the respondents is that the petitioner  has got the appointment  by playing fraud upon the authorities concerned.

I have heard Sri R.K. Pandey, learned counsel for the petitioner, Sri N.D. Rai, learned counsel for the respondent and Learned Standing Counsel.

From  perusal of the writ petition,  it transpires that not only the petitioner has played fraud upon the authorities but it appears that State authorities were also in league  in passing the various orders holding petitioner's appointment genuine and payment of salary without looking into papers and relevant material for valid appointment. The enquiry officer  has held that the petitioner's appointment appears to be valid on the basis of spot inspection without looking into the record and also recommended for payment of salary and consequential order for payment of salary has also been passed by the then Basic Shiksha Adhkari.  

In the circumstances, the petitioner is directed to make a comprehensive  representation along with copy of the writ petition  and the order passed by this Court to the Director of Education (Basic)U.P. who after hearing all the concerned i.e. petitioner and his real brother Suresh Prasad etc. shall pass reasoned order without being influenced by the observation made in this order within a period of 3 months from the date of production of a certified copy of this order. In case the  Director of Education finds that the petitioner is not entitled for any salary in that eventuality he may examine the conduct of the then officers who had made the  enquiry with regard  to the petitioner's appointment and passed order for payment of salary  to the petitioner.

With this observation the writ petition is disposed of finally.

Dt. 24.7.2006.



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