High Court

Counsel for Petitioner :- Jitendra Kumar Srivastava,Shiv Baboo Singh Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Gajendra Pratap, learned Senior Advocate assisted by Sri J.K. Srivastava, learned counsel for petitioner, Sri R.K. Tiwari, learned Additional Chief Standing Counsel for State- Respondents and Sri Vinod Kumar Singh, Advocate for Caveator.

2. The petitioner is repeatedly constrained to approach this Court and it appears to be 4th round of litigation.

3. Learned counsel for petitioner submitted that petitioner was appointed as class 4th employee and he became eligible for the promotion on post of clerk having five years of continuous service for substantive post arose on 31.10.2016.

4. In pursuance of order passed by this Court in earlier round of litigation, the claim of petitioner was again considered and vide order dated 10.09.2024 passed by District Inspector of Schools the claim was rejected and relevant part thereof is mentioned hereinafter :-- “ चूँकि(cid:5) श्री छोटेलाल यादव किवद्यालय में किदनां(cid:5) 01.05.1986 से परि(cid:26)चा(cid:26)(cid:5) (cid:5)े पद प(cid:26) किनयुक्त हो(cid:5)(cid:26) किदनां(cid:5) 01.05.1986 से जून 2010 त(cid:5) (cid:26)ाज(cid:5)ोष से वेतन प्राप्त कि(cid:5)ये 1 of 4 तथा जुलाई 2010 से जुलाई 2022 त(cid:5) वेतन बाधि’त था तथा अगस्त 2022 से अनव(cid:26)त वेतन प्राप्त (cid:5)(cid:26) (cid:26)हे है। इस प्र(cid:5)ा(cid:26) श्री छोटेलाल यादव परि(cid:26)चा(cid:26)(cid:5) (cid:5)ी सेवायें सातत्व अनव(cid:26)त नहीं है तथा इन(cid:5)े द्वा(cid:26)ा सी०सी०सी० (cid:5)म्पयूट(cid:26) धि4प्लोमा किदसम्ब(cid:26) 2019 में प्राप्त (cid:5)ी है जिजसमें (cid:5)ोई किवभागीय अनुमधित प्राप्त नहीं (cid:5)ी गयी है। इस प्र(cid:5)ा(cid:26) श्री छोटेलाल यादव परि(cid:26)चा(cid:26)(cid:5) (cid:5)ी सहाय(cid:5) लिलकिप(cid:5) (cid:5)े पद प(cid:26) प्रबन्’ सकिमधित द्वा(cid:26)ा प्रेकिषत प्रस्ताव किदनां(cid:5) 21.08.2022 बलहीन होने (cid:5)े (cid:5)ा(cid:26)ण स्वी(cid:5)ा(cid:26) योग्य नहीं है।”

5. Learned Senior Counsel for petitioner submitted that in Writ Petition No.12056 of 2021 filed by petitioner, it was directed by an order dated 05.08.2022 that petitioner’s appointment as Peon in institution as well as continuous service rendered by him was undisputed and it was directed to pay salary for period in question. For reference, the said order is reproduced in its entirety: “Heard learned counsel for petitioner and learned State counsel appearing on behalf of respondents no.1 to 4. No one has appeared on behalf of respondents no.5. Petition has been filed seeking a direction to the respondent to ensure release of arrears of salary along with current salary in accordance with order dated 28.11.2019 passed by the District Inspector of School concerned. Learned counsel for petitioner submits that the Institution in question is a higher secondary school governed by the provisions of Intermediate Education Act which is recognized and under grant by the Government. It is submitted that there are 13 sanctioned posts of peon in the said Institution on which petitioner was appointed on 01.05.1986 after following due process. His appointment was approved by Inspector on 01.07.1986 whereafter petitioner has been continuously working but due to a dispute in the Committee of Management, salary payment was stopped. Upon grievance being raised by petitioner, the Inspector concerned vide letter dated 28.11.2019 had directed the Management of the Institution to forward on the relevant documents pertaining to service rendered by petitioner. Attention has been drawn to the letter dated 03.12.2019 issued by the Management to the Finance and Account Officer concerned annexing all the relevant service documents pertaining to petitioner with a prayer that the Management be permitted to include petitioner's name in the salary bill. It is submitted that even thereafter salary payment has not been made to petitioner due to which the petitioner had earlier filed Writ A No.12056 of 2021 in which counter affidavit had been called for vide order dated 29.10.2021 but subsequent thereto, the matter was re-examined by the Inspector concerned who vide 2 of 4 letter dated 09.12.2021 directed the Finance and Account Officer to make payment of salary to petitioner. It is submitted that subsequently vide letter dated 14.12.2021, Finance and Account Officer also agreed with the proposition that petitioner should be paid salary. It is submitted that despite passing of aforesaid orders, the salary payment has not been made till date. Learned State counsel appearing on behalf of respondents does not deny the aforesaid documents particularly when subsequent orders dated 09.12.2021 and 14.12.2021 has been brought on record by means of counter affidavit filed by the District Inspector of Schools concerned. Considering the aforesaid undisputed factual situation, it is apparent that petitioner's appointment as peon in the Institution concerned is undisputed as is the fact pertaining to continuous service being rendered by him. The respondent themselves have passed appropriate orders pertaining to payment of salary to petitioner without actually following through. Considering the aforesaid, respondent no.3 i.e. District Inspector of School, District Jaunpur is directed to ensure payment of regular service alongwith arrears thereof within a period of two months from the date a copy of this order is produced before the concerned authority. Consequently, the writ petition succeeds and is allowed. Parties shall bear their own costs. ”

6. Learned Senior Counsel submitted that aforesaid order was not taken note in the impugned order, therefore, irregularity was committed and conclusion that salary of petitioner was stopped for certain period could not be considered an impediment for promotion as it was wrong and contrary to the above referred order.

7. Learned Standing Counsel for State has supported impugned order, however, has not able to convince, since order dated 10.09.2024 passed in earlier writ petition was not taken note of but date of substantive vacancy and essential qualification applicable on said date was also not considered.

8. I have considered the above submission and as referred above this Court by an order dated 05.08.2021 passed in Writ Petition No.12056 of 2021 has specifically held that petitioner was continuous in service as peon and, therefore, he is entitled 3 of 4 for payment of salary, therefore, an illegal stoppage of salary could not be a ground to reject the claim of petitioner as such the finding returned in the impugned order 10.09.2024 that petitioner was not in continuous services is perverse and accordingly, set aside.

9. The Court further takes note the other argument of learned Senior Counsel for petitioner has merit that CCC Certificate was not the essential requirement when substantial vacancy in question was arose.

10. In the aforesaid circumstances, since both grounds on which the impugned order was passed has no legal basis accordingly, impugned order is set aside and it is directed that petitioner be considered for promotion.

11. It is also observed that petitioner has to complete a CCC Certificate, since it is not only requirement but essential for work of a clerk and for that respondent may grant him a period of three months after above consideration.

12. Accordingly, Writ Petition is disposed of. Order Date :- 05.02.2025 P. Pandey [SAURABH SHYAM SHAMSHERY, J.] 4 of 4

Counsel for Petitioner :- Jitendra Kumar Srivastava,Shiv Baboo Singh Hon'ble Saurabh Shyam Shamshery,J.

1. Heard Sri Gajendra Pratap, learned Senior Advocate assisted by Sri J.K. Srivastava, learned counsel for petitioner, Sri R.K. Tiwari, learned Additional Chief Standing Counsel for State- Respondents and Sri Vinod Kumar Singh, Advocate for Caveator.

2. The petitioner is repeatedly constrained to approach this Court and it appears to be 4th round of litigation.

3. Learned counsel for petitioner submitted that petitioner was appointed as class 4th employee and he became eligible for the promotion on post of clerk having five years of continuous service for substantive post arose on 31.10.2016.

4. In pursuance of order passed by this Court in earlier round of litigation, the claim of petitioner was again considered and vide order dated 10.09.2024 passed by District Inspector of Schools the claim was rejected and relevant part thereof is mentioned hereinafter :-- “ चूँकि(cid:5) श्री छोटेलाल यादव किवद्यालय में किदनां(cid:5) 01.05.1986 से परि(cid:26)चा(cid:26)(cid:5) (cid:5)े पद प(cid:26) किनयुक्त हो(cid:5)(cid:26) किदनां(cid:5) 01.05.1986 से जून 2010 त(cid:5) (cid:26)ाज(cid:5)ोष से वेतन प्राप्त कि(cid:5)ये 1 of 4 तथा जुलाई 2010 से जुलाई 2022 त(cid:5) वेतन बाधि’त था तथा अगस्त 2022 से अनव(cid:26)त वेतन प्राप्त (cid:5)(cid:26) (cid:26)हे है। इस प्र(cid:5)ा(cid:26) श्री छोटेलाल यादव परि(cid:26)चा(cid:26)(cid:5) (cid:5)ी सेवायें सातत्व अनव(cid:26)त नहीं है तथा इन(cid:5)े द्वा(cid:26)ा सी०सी०सी० (cid:5)म्पयूट(cid:26) धि4प्लोमा किदसम्ब(cid:26) 2019 में प्राप्त (cid:5)ी है जिजसमें (cid:5)ोई किवभागीय अनुमधित प्राप्त नहीं (cid:5)ी गयी है। इस प्र(cid:5)ा(cid:26) श्री छोटेलाल यादव परि(cid:26)चा(cid:26)(cid:5) (cid:5)ी सहाय(cid:5) लिलकिप(cid:5) (cid:5)े पद प(cid:26) प्रबन्’ सकिमधित द्वा(cid:26)ा प्रेकिषत प्रस्ताव किदनां(cid:5) 21.08.2022 बलहीन होने (cid:5)े (cid:5)ा(cid:26)ण स्वी(cid:5)ा(cid:26) योग्य नहीं है।”

5. Learned Senior Counsel for petitioner submitted that in Writ Petition No.12056 of 2021 filed by petitioner, it was directed by an order dated 05.08.2022 that petitioner’s appointment as Peon in institution as well as continuous service rendered by him was undisputed and it was directed to pay salary for period in question. For reference, the said order is reproduced in its entirety: “Heard learned counsel for petitioner and learned State counsel appearing on behalf of respondents no.1 to 4. No one has appeared on behalf of respondents no.5. Petition has been filed seeking a direction to the respondent to ensure release of arrears of salary along with current salary in accordance with order dated 28.11.2019 passed by the District Inspector of School concerned. Learned counsel for petitioner submits that the Institution in question is a higher secondary school governed by the provisions of Intermediate Education Act which is recognized and under grant by the Government. It is submitted that there are 13 sanctioned posts of peon in the said Institution on which petitioner was appointed on 01.05.1986 after following due process. His appointment was approved by Inspector on 01.07.1986 whereafter petitioner has been continuously working but due to a dispute in the Committee of Management, salary payment was stopped. Upon grievance being raised by petitioner, the Inspector concerned vide letter dated 28.11.2019 had directed the Management of the Institution to forward on the relevant documents pertaining to service rendered by petitioner. Attention has been drawn to the letter dated 03.12.2019 issued by the Management to the Finance and Account Officer concerned annexing all the relevant service documents pertaining to petitioner with a prayer that the Management be permitted to include petitioner's name in the salary bill. It is submitted that even thereafter salary payment has not been made to petitioner due to which the petitioner had earlier filed Writ A No.12056 of 2021 in which counter affidavit had been called for vide order dated 29.10.2021 but subsequent thereto, the matter was re-examined by the Inspector concerned who vide 2 of 4 letter dated 09.12.2021 directed the Finance and Account Officer to make payment of salary to petitioner. It is submitted that subsequently vide letter dated 14.12.2021, Finance and Account Officer also agreed with the proposition that petitioner should be paid salary. It is submitted that despite passing of aforesaid orders, the salary payment has not been made till date. Learned State counsel appearing on behalf of respondents does not deny the aforesaid documents particularly when subsequent orders dated 09.12.2021 and 14.12.2021 has been brought on record by means of counter affidavit filed by the District Inspector of Schools concerned. Considering the aforesaid undisputed factual situation, it is apparent that petitioner's appointment as peon in the Institution concerned is undisputed as is the fact pertaining to continuous service being rendered by him. The respondent themselves have passed appropriate orders pertaining to payment of salary to petitioner without actually following through. Considering the aforesaid, respondent no.3 i.e. District Inspector of School, District Jaunpur is directed to ensure payment of regular service alongwith arrears thereof within a period of two months from the date a copy of this order is produced before the concerned authority. Consequently, the writ petition succeeds and is allowed. Parties shall bear their own costs. ”

6. Learned Senior Counsel submitted that aforesaid order was not taken note in the impugned order, therefore, irregularity was committed and conclusion that salary of petitioner was stopped for certain period could not be considered an impediment for promotion as it was wrong and contrary to the above referred order.

7. Learned Standing Counsel for State has supported impugned order, however, has not able to convince, since order dated 10.09.2024 passed in earlier writ petition was not taken note of but date of substantive vacancy and essential qualification applicable on said date was also not considered.

8. I have considered the above submission and as referred above this Court by an order dated 05.08.2021 passed in Writ Petition No.12056 of 2021 has specifically held that petitioner was continuous in service as peon and, therefore, he is entitled 3 of 4 for payment of salary, therefore, an illegal stoppage of salary could not be a ground to reject the claim of petitioner as such the finding returned in the impugned order 10.09.2024 that petitioner was not in continuous services is perverse and accordingly, set aside.

9. The Court further takes note the other argument of learned Senior Counsel for petitioner has merit that CCC Certificate was not the essential requirement when substantial vacancy in question was arose.

10. In the aforesaid circumstances, since both grounds on which the impugned order was passed has no legal basis accordingly, impugned order is set aside and it is directed that petitioner be considered for promotion.

11. It is also observed that petitioner has to complete a CCC Certificate, since it is not only requirement but essential for work of a clerk and for that respondent may grant him a period of three months after above consideration.

12. Accordingly, Writ Petition is disposed of. Order Date :- 05.02.2025 P. Pandey [SAURABH SHYAM SHAMSHERY, J.] 4 of 4