Sanjay Kumar Pandey and Another vs D.I.O.S. and Others

Sunil Ambwani and Kashinath Pandey, JJ.—We have heard Shri Anand Kumar Pandey, learned Counsel for the Appellants. Learned Standing Counsel appears for the State Respondents. Shri Akhileshwar Singh appears for Respondent Nos. 3 and 4.

Shri Akhileshwar Singh appearing for Respondent Nos. 3 and 4 submits that the impugned order is not a ''judgment''. It does not decide the rights of the parties or settles any issue either way and thus the Special Appeal under Chapter VIII Rule 5 of the Rules of the Court, 1952 is not maintainable.

By impugned order learned Single Judge has directed the District Inspector of Schools, Balia to reply as to how the payment of salary could be? released to the Petitioners after the report was submitted to the Director on 28.2.1998. It is contended that in the report submitted by the Director it was found that the appointments of many teachers including the Petitioner Appellants were made in excess of the sanctioned strength and that no procedure was followed in their appointments.

The interim order was passed staying the operation of the order passed by the learned Single Judge in vacations on 18.6.2010. The Division Bench consisting of Hon''ble Mr. Justice Vijay Manohar Sahay and Hon''ble Mr. Justice Bala Krishna Narayana were impressed by the submission that since the notice u/s 3(3) of the Payment of Salary Act was challenged before the learned Single Judge, he did not have jurisdiction sitting in Court No. 18 to pass the order. The Counsel relied upon Sanjay Mohan v. State of U.P. and Ors. 2008 (2) ADJ 397.

The writ petition was filed by the Committee of Management against the insistence of the District Inspector of Schools by his order dated 17.4.2010, to pass salary bills of the teachers including the Petitioners. The Single Judge sitting in Court No. 18 had jurisdiction to hear the educational service matters. In writ petition the challenge is made to the payment of salary of teachers. The matter, therefore, could be entertained by learned Single Judge and listed before him as service matter. We do not find that learned Single Judge lacked jurisdiction. The determination assigned to him included the issue raised in the writ petition. We can understand if the criminal matter is summoned by company Court, or that the bench hearing habeas corpus matters starts hearing civil appeals, the order may be questioned on the ground of lack of competence. When the matter relates to payment of salary, the challenge to the jurisdiction on the? ground that matter was actually educational matter and not educational service matters, is too technical a distinction to interfere in the special appeal with the interim orders. Further we find that no such plea was taken before learned Single Judge nor there is any ground in the writ petition that an objection to the jurisdiction was raised by the Petitioner-Appellant before learned Single Judge.

The special appeal is consequently dismissed as not maintainable under Chapter VIII Rule 5 of the Allahabad High Court Rules. The interim order dated 18.6.2010 is discharged.