Sunil Kumar vs State of U.P. and Others

Hon''ble Devendra Kumar Upadhyaya, J.—Under challenge in the instant writ petition is the order dated 24.04.2008 passed by District Basic Education Officer, Ambedkar Nagar whereby salary of the petitioner has been ordered to be stopped.

It so happened that the petitioner was given compassionate appointment on the post of untrained Assistant Teacher vide order dated 24.04.2003 which has been annexed as annexure no.2 to the writ petition. After his appointment, the petitioner has been discharging his duties on the said post and has also undergone the requisite BTC Training in the year 2005. A copy of certificate of the said training has been annexed as annexure no. 3 to the writ petition. Thereafter, it appears that some complaint was made by one Sri Ram Jiyawan that the petitioner has obtained appointment on compassionate ground on the basis of some misrepresentation that Smt Vimla Devi was the mother of the petitioner whereas Smt Vimla Devi was not his mother and hence the petitioner could not have been given appointment on compassionate grounds on the death of said Smt Vimla Devi.

Learned counsel for the petitioner vehemently argued that without arriving at a conclusion as to whether the petitioner while being appointed on compassionate ground had misrepresented the authorities concerned, the impugned order stopping the payment of salary of the petitioner could not have been passed. He further stated that the relationship of employee and employer has not yet ceased for the reason that till date no order terminating the services of the petitioner has been passed nor any dismissal order has been passed and as such in absence of same, stoppage of salary of the petitioner merely on the ground of pendency of inquiry, was not justified.

Learned counsel for the petitioner has filed a copy of the report submitted by the Assistant Basic Shiksha Adhikari, Bhiti, Ambedkar Nagar which has been annexed as annexure no. 6 to the application dated 08.01.2012 moved by the petitioner. Learned counsel further submits that there is no material against him which could establish that he obtained appointment on misrepresentation. He also submits that even after passing of the order of stoppage of salary, petitioner was promoted as Assistant Teacher, Senior Basic School vide order dated 12.12.2010 which has been annexed as annexure no.4 to the writ petition.

Learned counsel for the petitioner emphatically urged that in view of the above facts, the impugned order is absolutely unlawful and petitioner is being unnecessarily denied his right to salary to which he is otherwise entitled.

While entertaining the instant writ petition on 27.09.2011, this Court passed an order granting two days'' time to learned Standing Counsel appearing for opposite party nos. 2, 3 and 4 to seek instructions and matter was thereafter ordered to come up on 29.09.2011. On 29.09.2011, it appears that on the statement made by counsel for District Basic Education Officer to the effect that the petitioner''s salary has been stopped on the basis of some audit report in which petitioner''s appointment has been reported as illegal, a week''s time, as prayed, was granted to learned counsel appearing for BSA to file counter affidavit and the matter was ordered to be listed on 11.10.2011. On 11.10.2011 again four weeks'' time as prayed by the learned counsel for the opposite parties was granted and thereafter matter was listed again on 29.11.2011, on which date, two weeks'' further time was allowed to learned counsel for opposite parties to file counter affidavit.

Despite the time for filing counter affidavit having been granted to learned counsel appearing for BSA on so many occasions, till date no counter affidavit has been filed.

On query being put to counsel for BSA as to which audit report has been relied to stop the salary of the petitioner, the Court''s attention has been drawn to annexure no. 6 to the writ petition, which is a letter written by the Assistant Director, Local Fund Account Department, Faizabad Devision, Faizabad to the Finance and Accounts Officer, Basic Education, Faizabad in which it has been mentioned that audit objection in regard to petitioner''s irregular appointment has been dropped on 02.03.2009 and no such matter is pending in the audit department.

Today again on being confronted as to for what reason, payment of salary to the petitioner has been stopped, learned counsel for the BSA only prays for further time to file counter affidavit.

In these circumstances, the Court has no option except to proceed to pass interim order in this case.

As observed above, till date appointment of the petitioner has not been cancelled nor he has been dismissed or removed from service and as such, the relationship of the petitioner with his employer has not yet ceased. The petitioner has been discharging his duties continuously and merely on the ground of pendency of some complaint, salary of the petitioner could not have been stopped by the District Basic Education Officer. The order stopping the salary of the petitioner was passed on 24.04.2008. Opposite parties have not brought on record any material as regards the progress, if any, made in the inquiry allegedly being conducted into the complaint made by one Sri Ram Jiyawan. I find that the report from the Local Audit Fund Department is available on record, which says that audit objection in regard to petitioner''s appointment has been dropped.

In these circumstances, operation and implementation of the order dated 24.04.2008 is hereby stayed until further orders of the Court. Respondents are directed to make payment of the salary to the petitioner every month as and when it accrues to him. Respondents are further directed to make payment of arrears of salary to the petitioner within a month from the date of receipt of a certified copy of this order.

As prayed, two weeks'' time is granted to learned counsel for the opposite parties to file counter affidavit.

Let this case be listed on 22.02.2012, on which date, learned counsel appearing for BSA shall file an affidavit as regards the payment made to the petitioner as per the directions given above.