JANKI PRASAD Vs. STATE OF U.P.

JUDGEMENT

(1.) List revised. Heard learned counsel for the petitioner, learned Standing Counsel and perused the record. The present writ petition has been filed against the impugned order dated 5.9.2007 passed by District Basic Education Officer, Lalitpur, respondent No. 3, for recovery of Rs. 30270/- the amount paid in excess to the petitioner. By interim order dated 10.12.2007 the recovery was stayed.

(2.) The brief facts of the present case is that petitioner was duly selected and appointed as Assistant Teacher on 16.7.1971 in the institution known as Veerangana Awanti Bai Junior High School, Jakhoura (hereinafter referred as an 'institution'), which is a recognised junior high school and was receiving grant-in-aid from the State. The institution was governed by the provisions of U.P. Recognized Basic School (Junior High School) Teachers Appointment & Service Condition Rules, 1978 and provisions of U.P. Junior High School (Payment of Salaries of Teachers and others Employees Act), 1978. The petitioner was working continuously. Thereafter, post of Head-Master fell vacant on 30.6.2000 after retirement of the then Head-Master. The petitioner being senior most qualified Assistant Teacher was promoted by the committee of management by the resolution dated 30.6,2000, which was duly approved by the District Basic Education Officer on 6.12.2001. After the manager of the institution was changed there was harassment of the petitioner and petitioner was pressurised to tender the resignation. However, the resignation was not accepted by the committee of management because since there was unnecessary harassment and pressure hence there was no option but to tender the resignation. Since the resignation was not accepted hence he continued in service. He was granted selection and promotional grade. Now the petitioner has already retired during pendency of the writ petition.

(3.) Counsel for the petitioner submitted that the petitioner was duly selected and appointed teacher, whose services were approved on substantive post and subsequently, his promotion and appointment on the post of Head-Master was approved by the then District Basic Education Officer after resolution of the committee of management. Thereafter when Manager was changed he started torture and humiliation and under pressure petitioner required from the post of Head-Master, which was never accepted by the Committee of Management. Than just to harass the petitioner his salary was withhold. Then Writ Petition No. 1681 of 2003 was filed, which was disposed off on 30.1.2003. Thereafter, considering the representation, the Assistant Dy. Director of Education (Basic), Jhansi Region directed for payment of salary. It was held that resignation was not justified, hence was not acceptable and thereafter was withdrawn by the petitioner. He was allowed to work. The Manager continued to harass. Even the petitioner was suspended by order dated 5.6.2003 from the post of Head-Master. However, neither any charge-sheet was submitted nor any inquiry was conducted. Then the writ petition No. 39835 of 2003 was filed on behalf of petitioner, which was disposed off on 21.10.2005 with the direction to the committee of management to complete the inquiry within a period of four months. No inquiry was conducted and no information was given regarding time, date and place of inquiry. Even there was no information regarding appointment of any inquiry officer. However, after charge-sheet was given the petitioner submitted detailed reply. Since no inquiry officer was appointed and no inquiry was conducted within four months as directed by the Court hence just in defence from the contempt of Court, the charge-sheet was submitted and the punishment was awarded on 16.9.2006 with holding three increments. Thereafter, petitioner join the post of Head-Master on 25.9.2006 and signature was also attested and awardment of punishment withholding salary was not approved by the District Basic Education Officer as required under Rule 1978 and approval is mandatory. When petitioner was reinstated and suspension order was revoked he was entitled for the payment of arrear. The representation was given by the petitioner before the District Basic Education Officer, Lalitpur as well as to the Additional Director of Basic Education Jhansi, Region, Jhansi and even the reminders were issued. The petitioner was entitled to be given selection grade after completing 10 years of service and after 12 years of service in selection grade. The salary of the Head-Master and other teachers were fixed on 21.2.1987. The then District Basic Eduction Officer constituted a committee and after considering the claim of the petitioner granted selection grade and thereafter, promotional grade on 24.9.2002. In view of the G.O. dated 24.7.1986 the teachers of the institution were given selection grade and promotional grade. Since the petitioner was entitled for the selection grade and promotional grade, the same was given by the District Education Officer. Though there was no error in calculating the salary, hence the petitioner was entitled for the same and the order passed for recovery is arbitrary, illegal and against principle of nature justice. Hence the impugned order dated 5.9.2007, which was passed without holding any inquiry and affording any opportunity of hearing is liable to be quashed. He relied the judgment of this Court in case of Ram Milan Yadav v. State of V.P., 2012 3 ESC 1372, in which it was held that "the recovery of excess amount paid due to wrong fixation of pay, which was not due to result of any fraud or misrepresentation or fault of the petitioner then the recovery after retirement was arbitrary and the order for recovery was set aside."