High Court

4. It is argued by learned counsel for the petitioner that after completion of more than 28 years of service on the post of Assistant Teacher, now the order has been passed by the respondent No.3 permitting the petitioner to work on the Class IV post is not permissible in law. He placed reliance upon a judgement and order dated 02.08.2024 passed by Division Bench of this Court in the case of Dinesh Kumar Singh Vs. State Of U.P. Through Secretary-Basic Education And 3 Others (Special Appeal No.349 of 2024).

5. On the other hand, Sri Harsh Vardhan Gupta, learned counsel for the respondent No.3 argued that since the petitioner has not completed her B.T.C. Training as per Government Order dated 04.09.2000, by taking a lenient view, the petitioner was given appointment on the post of Class IV post. It is further argued that when a direction was given by the authorities to the petitioner to place relevant Training Certificate, an undertaking has been given by the petitioner herself before the authorities vide letter dated 14.06.2024 stating therein that the petitioner be adjusted on some other post as per her qualifications and any such decision taken by the Department will be acceptable to her. Apart from the same, it is argued that the present petition is not maintainable as the petitioner has a remedy under Rule 5 of U.P. Basic Education Staff Rules, 1973 (hereinafter referred to as Rules 1973.

6. While going through the aforesaid Rule, it transpires that the appeal shall lie against the punishment order mentioned in Rule 3 of Rules 1973. The Rule 3 of Rules 1973 reads as follows:- "3. Punishment. - The appointing authority may, for good and sufficient reasons, impose the following penalties upon the officers, teachers and other employees of the Board : (i) Censure; (ii) with holding of the increments including stoppage at an efficiency bar; (iii) reduction to a lower post of time-scale, or to a lower stage in a time- scale; (iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders; (v) removal from the service of the Board which does not disqualify him from future employment; (vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment."

7. From perusal of the Rule 3 of Rules 1973, it is clear that the punishment awarded to the petitioner does not fall in any of the category mentioned in the aforesaid Rule, therefore, this objection cannot tenable to the eyes of law as the petitioner does not have alternative remedy to file appeal against the awarded punishment.

8. After hearing counsel for the parties a detailed order was passed by this Court on 20.01.2025. Today when the matter is taken up, it is argued by counsel for the petitioner that since the petitioner was not qualified for the post of Assistant Teacher the impugned order has rightly been passed.

9. In response to the same, counsel for the petitioner placed reliance upon an judgement and order dated 31.03.2022 passed by the Hon'ble Apex Court in Civil Appeal No.784 of 2011 reported in AIRONLINE 2022 SC 1310. On the basis of aforesaid it is argued that the services cannot be cancelled after 24 years for the reasons that he is relative of the member of the Selection Committee. The order reads as follows :- "1. JUDGEMENT :-The challenge in the present appeal is to an order passed by the Division Bench of the High Court of judicature at Allahabad dated 05.10.2009 whereby an intra Court Appeal was dismissed.

2. The Single Judge in its order dated 11.05.2000 maintained the order dated 24.12.1998 of cancellation of appointment of the appellant as Principal on account of violation of Chapter 3 Rule 4 of U.P. Educational Manual prescribes that a close relation mentioned in said Rule cannot be appointed as Principal.

3. The appellant was appointed as a principal in the year 1974-75 when junior High School was upgraded as High School and was recognized by the State Government. Thus, the appellant has worked for almost 24 years before the services came to be cancelled for the reason that he is relative of the member of the Selection Committee.

4. The order dated 24.12.1998 also records that the money be recovered from the appellant which has been paid to him, as a result of his irregular appointment for the post of Principal.

5. We find that the High Court has failed to consider the fact that even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary.

6. Consequently, we find the order passed by the State Government dated 24.12.1998 is wholly illegal and untenable. The High Court should have been appreciated the facts in the proper perspective and should have set aside the same. the order was passed on 24.12.1998, the appellant was not working on the post of Principal. appears It

7. Therefore, we set aside the order dated 24.12.1998 and direct the respondents to treat appellant as retired on the date of the order i.e. 24.12.1998 and to pay pensionary benefits, if any, due to him for the services rendered.

8. The appeal stands allowed in above terms.

9. Pending application(s), if any, also stand disposed of."

10. In this view of the matter, it is argued by counsel for the petitioner that the order passed by the respondent no.3-District Basic Education Officer, Hapur is per-se illegal and liable to be set aside.

11. Heard learned counsel for the parties and perused the records.

12. In the facts and circumstances of the case and also in the interest of justice, respondent no.3-District Basic Education Officer, Hapur is directed to re-visit his order dated 27.06.2024 passed by him sympathetically taking into consideration various aspect of the matter as noted above as well as law laid down by the Hon'ble Apex Court in the case of Man Singh (supra) expeditiously and preferably within a period of four weeks from the date of receipt of certified copy of this order.

13. The impugned order will be subject matter of the decision taken by the respondent no.3. Order Date :- 6.2.2025 Pramod Tripathi

4. It is argued by learned counsel for the petitioner that after completion of more than 28 years of service on the post of Assistant Teacher, now the order has been passed by the respondent No.3 permitting the petitioner to work on the Class IV post is not permissible in law. He placed reliance upon a judgement and order dated 02.08.2024 passed by Division Bench of this Court in the case of Dinesh Kumar Singh Vs. State Of U.P. Through Secretary-Basic Education And 3 Others (Special Appeal No.349 of 2024).

5. On the other hand, Sri Harsh Vardhan Gupta, learned counsel for the respondent No.3 argued that since the petitioner has not completed her B.T.C. Training as per Government Order dated 04.09.2000, by taking a lenient view, the petitioner was given appointment on the post of Class IV post. It is further argued that when a direction was given by the authorities to the petitioner to place relevant Training Certificate, an undertaking has been given by the petitioner herself before the authorities vide letter dated 14.06.2024 stating therein that the petitioner be adjusted on some other post as per her qualifications and any such decision taken by the Department will be acceptable to her. Apart from the same, it is argued that the present petition is not maintainable as the petitioner has a remedy under Rule 5 of U.P. Basic Education Staff Rules, 1973 (hereinafter referred to as Rules 1973.

6. While going through the aforesaid Rule, it transpires that the appeal shall lie against the punishment order mentioned in Rule 3 of Rules 1973. The Rule 3 of Rules 1973 reads as follows:- "3. Punishment. - The appointing authority may, for good and sufficient reasons, impose the following penalties upon the officers, teachers and other employees of the Board : (i) Censure; (ii) with holding of the increments including stoppage at an efficiency bar; (iii) reduction to a lower post of time-scale, or to a lower stage in a time- scale; (iv) recovery from pay of the whole or part of any pecuniary loss caused to the Board by negligence or breach of orders; (v) removal from the service of the Board which does not disqualify him from future employment; (vi) dismissal from the service of the Board which ordinarily disqualifies him from future employment."

7. From perusal of the Rule 3 of Rules 1973, it is clear that the punishment awarded to the petitioner does not fall in any of the category mentioned in the aforesaid Rule, therefore, this objection cannot tenable to the eyes of law as the petitioner does not have alternative remedy to file appeal against the awarded punishment.

8. After hearing counsel for the parties a detailed order was passed by this Court on 20.01.2025. Today when the matter is taken up, it is argued by counsel for the petitioner that since the petitioner was not qualified for the post of Assistant Teacher the impugned order has rightly been passed.

9. In response to the same, counsel for the petitioner placed reliance upon an judgement and order dated 31.03.2022 passed by the Hon'ble Apex Court in Civil Appeal No.784 of 2011 reported in AIRONLINE 2022 SC 1310. On the basis of aforesaid it is argued that the services cannot be cancelled after 24 years for the reasons that he is relative of the member of the Selection Committee. The order reads as follows :- "1. JUDGEMENT :-The challenge in the present appeal is to an order passed by the Division Bench of the High Court of judicature at Allahabad dated 05.10.2009 whereby an intra Court Appeal was dismissed.

2. The Single Judge in its order dated 11.05.2000 maintained the order dated 24.12.1998 of cancellation of appointment of the appellant as Principal on account of violation of Chapter 3 Rule 4 of U.P. Educational Manual prescribes that a close relation mentioned in said Rule cannot be appointed as Principal.

3. The appellant was appointed as a principal in the year 1974-75 when junior High School was upgraded as High School and was recognized by the State Government. Thus, the appellant has worked for almost 24 years before the services came to be cancelled for the reason that he is relative of the member of the Selection Committee.

4. The order dated 24.12.1998 also records that the money be recovered from the appellant which has been paid to him, as a result of his irregular appointment for the post of Principal.

5. We find that the High Court has failed to consider the fact that even if the appointment was irregular, the appellant had discharged the duties and in lieu of duties, he had to be paid. The State cannot take any work from any employee without payment of any salary.

6. Consequently, we find the order passed by the State Government dated 24.12.1998 is wholly illegal and untenable. The High Court should have been appreciated the facts in the proper perspective and should have set aside the same. the order was passed on 24.12.1998, the appellant was not working on the post of Principal. appears It

7. Therefore, we set aside the order dated 24.12.1998 and direct the respondents to treat appellant as retired on the date of the order i.e. 24.12.1998 and to pay pensionary benefits, if any, due to him for the services rendered.

8. The appeal stands allowed in above terms.

9. Pending application(s), if any, also stand disposed of."

10. In this view of the matter, it is argued by counsel for the petitioner that the order passed by the respondent no.3-District Basic Education Officer, Hapur is per-se illegal and liable to be set aside.

11. Heard learned counsel for the parties and perused the records.

12. In the facts and circumstances of the case and also in the interest of justice, respondent no.3-District Basic Education Officer, Hapur is directed to re-visit his order dated 27.06.2024 passed by him sympathetically taking into consideration various aspect of the matter as noted above as well as law laid down by the Hon'ble Apex Court in the case of Man Singh (supra) expeditiously and preferably within a period of four weeks from the date of receipt of certified copy of this order.

13. The impugned order will be subject matter of the decision taken by the respondent no.3. Order Date :- 6.2.2025 Pramod Tripathi