Court No.

- 36

Case :- WRIT - A No. - 2665 of 2022

Petitioner :- Murtaza
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Ram Samujh Singh
Counsel for Respondent :- C.S.C.,Dilendra Pratap Singh

Hon'ble Saumitra Dayal Singh,J.

Heard learned counsel for the petitioner and Sri Satish Sharma
learned Additional Chief Standing Counsel for the State
respondents.

Present writ petition has been filed seeking a direction upon

respondent-DIOS, Varanasi to pay to the petitioner arrears of
salary for the period (i) 18/19.11.1993 to 06.3.2009 and (ii)
01.5.2011 to 26.5.2016.

Undisputedly the petitioner was appointed as a Teacher (CT

Grade) at the institution National Inter College, Pindara,
Varanasi. The matter pertaining to financial approval to his
appointment gave rise to dispute between the petitioner and the
State respondents. Besides still earlier litigation, by order dated
20.3.2003 passed by the DIOS, Varanasi financial approval to
the appointment claimed by the petitioner was declined. It
became subject matter of challenge in Writ Petition No. 23660
of 2003. It was allowed by order dated 06.3.2009 on the
following terms:

"For the reasons given above, this writ petition is allowed and
the order impugned dated 20.3.2003 passed by the District
Inspector of Schools Varanasi is hereby quashed. The petitioner
shall be entitled to his salary along with the arrears and actual
payment be made within a period of three months from the date
of submission of certified copy of this order before him.
No order is passed as to costs."
While giving compliance to the above order, the DIOS Varanasi
passed a fresh order dated 23.2.2010. While financial approval
was granted by the DIOS, he confined the relief of payment of
salary prospectively from 06.3.2009. The operative portion of
the order dated 23.2.2010 reads as below:

" ययचच कक ननययक पद कय अधधययचन आययग कय पकनषत न नकयक जयनक एवव

ययचच नवदयलय मम अनवरत कययर रत रहनक कक सससनत मम मयननचय उचच
नययययलय दयरय पयररत आदकश नदनयवक 06.03.09 कक अनयपयलन मम मयननचय
उचच नययययलय दयरय पयररत आदकश कक नतधस सक ययचच कक वकतन भयगतयन कक
सहमनत नवभयग कक नकसच अनयसय आदकश कक अधचन पदयन कक जयतच हह।"
Certain contempt proceedings were initiated by the petitioner
wherein as a consequence of directions issued, part payments
have been made to the petitioner for the period 06.3.2009
onwards.

Later, salary payment of the petitioner was again discontinued

for the period 01.5.2011 to 26.5.2016. At that stage, petitioner
instituted proceedings in Writ-A No. 12966 of 2015, Murtaza
Vs. State of U.P. and Others. It was allowed by order dated
26.5.2016. Perusal of the order reveals, even at that stage,
petitioner confined his relief to payment of regular salary for
the period May 2011 onwards. Such recital is contained in the
second paragraph of the said order. That writ petition was
allowed on the following terms:

"In the aforesaid facts and circumstances, the order impugned

cannot sustain and is accordingly set aside. The writ petition is
allowed. A direction is issued to the respondents to release the
salary of the petitioner since May, 2011, within three weeks
from the date of production of certified copy of this order."
Having heard learned counsel for parties and having perused
the record, insofar as the salary is being claimed by the
petitioner for the period 18.11.1993 to 05.3.2009, it is seen,
earlier the DIOS Varanasi had rejected the financial approval
sought by the Committee of Management to the appointment of
the petitioner on the post of Assistant Teacher (CT Grade), by
order dated 20.3.2003. Upon challenge raised thereto, the Court
rejected the contention of the learned Standing Counsel (raised
at that stage)that the Committee of Management had never
intimated the respondents the fact of short term vacancy or ad
hoc vacancy having arisen upon merger of CT Grade (then
dying cadre) in LT Grade. Then, as to the other objection with
respect to ban then imposed on fresh appointments, the Writ
Court rejected the submission of the State on the strength of an
earlier decision of the Court in Subhash Chandra Tripathi Vs.
DIOS, 2006(5) ADJ 110. It is on that reasoning that the Writ
Court allowed that writ petition and found the petitioner to be
entitled to salary alongwith arrears.

In absence of any dispute as to the date of initial appointment of

the petitioner brought before the Court and in face of clear
observation contained in that order of the Court that the
Committee of Management had proposed the matter of
financial approval to be granted to the appointment of the
petitioner on 18.10.1993. It is that date from which arrears were
to be computed (in the least).

In fact the Court did not leave it open to the DIOS to make any
fresh consideration as to entitlement of financial approval.
Rightly or wrongly, the Writ Court itself provided for that effect
to arise in law. Once the direction was issued to make full
payment of salary, clearly that relief could arise only by way of
grant of financial approval. The Writ Court having exercised
that discretion, remedy, if any available to the State respondent
was to challenge that order.

Perusal of the counter affidavit which gives full details of

earlier litigation between the parties makes no whisper of any
challenge raised by the State respondents to the order dated
06.3.2009 passed in Writ Petition No. 23660 of 2003.

Consequently, the DIOS, Varanasi was not vested with any

discretion to revisit the question of grant of financial approval
to the appointment of the petitioner. He was only to give effect
to the specific direction issued to him, as has been noted above.
Consequently, he was obligated to pay out the arrears of salary
to the petitioner from the date of his initial engagement, noted
not later than 18.10.1993, in the order of the Writ Court. It was
that amount of salary which was to be computed and paid out to
the petitioner within three months specified in the order of this
Court.

Seen in that light, the communication dated 23.2.2010 is in

conflict with the directions issued to the DIOS. He has failed to
discharge his statutory duty including his duty to give full effect
to the order of this Court date 06.3.2009 passed in Writ Petition
No. 23660 of 2003. Second, no reason has been assigned in the
said communication to confine the computation of salary
prospectively from 06.3.2009. The law in that regard is very
clear. Once financial approval is granted to the appointment, for
the purpose of salary payment, it would relate back to the date
of initial appointment. That view was taken by a learned Single
Judge of this Court in Shashi Kant Singh Vs. State of U.P. and
Others, 1992 ACJ 539. Similar view was again taken in
Ravindra Kumar Vs. State of U.P. ( (2010)3 UPLBEC 1960.

Therefore, denial of payment of full salary to the petitioner

from the date of his initial appointment (not later than
18.10.1993) to 05.3.2009 is also contrary to the law declared.

Insofar as the second part of the claim is concerned viz-a-viz

non payment of salary for the period 01.5.2011 to 26.5.2016, in
view of the specific direction issued on 26.5.2016 in Writ-A No.
12966 of 2015, that relief has already been granted to the
petitioner. What effort may have been made by the petitioner to
avail that relief granted or what lapses may have occurred in
that process may not entitle the petitioner to file a second writ
 petition for the same relief. To that limited extent, the writ
petition must fail.

The writ petition is accordingly partly allowed with a direction

issued to respondent No. 3 to compute and pay out the arrears
of salary due to the petitioner from 18.11.1993 to 05.3.2009.
That exercise may be completed as expeditiously as possible,
preferably within three months from today, failing which same
shall attract interest liability @ 8% from the date of amount
becoming due till the date of its actual payment.

Order Date :- 2.12.2022

Faraz

Digitally signed by FARAZ AHMAD

Date: 2022.12.02 17:55:06 IST
Reason:
Location: High Court of Judicature
at Allahabad