Kameshwar Prasad Pandey v. State of U.P. and
Case Details
Court No. - 29 Case :- SPECIAL APPEAL No. - 112 of 2020 Appellant :- Kameshwar Prasad Pandey Respondent :- State Of U.P. Through Principal Secretary Secondary Education, U.P. Lucknow And 4 Others Counsel for Appellant :- Ram Krishna,Anup Kumar Counsel for Respondent :- C.S.C. Hon'ble Manoj Misra,J. Hon'ble Vikas Budhwar,J.
Legal Reasoning
1. Heard Sri Shashi Nandan, learned Senior Counsel, assisted by Sri Ram Krishna, for the appellant and Sri Santosh Kumar Srivastava, learned Additional Chief Standing Counsel, for the respondents 1, 2 and 3. 2. Despite being noticed, the fourth and the fifth respondent neither filed their reply nor advanced arguments when the matter was heard before the writ court and since no relief has been sought against them, we do not deem it necessary to issue notice to them.
Decision
3. This intra-court appeal has been filed by the appellant (writ petitioner) against the judgement and order dated 10.1.2020 passed by learned Single Judge in Writ-A No.11764 of 2017 (Kameshwar Prasad Pandey V. State of U.P. and 4 others) dismissing the writ petition of the appellant. 4. The case of the writ petitioner before the learned Single Judge was that there is an institution by the name of Sarvoday Siksha Sadan Inter College Bheerpur, Karchana, Prayagraj (In short 4th respondent institution) which is recognised under the provisions of the U.P. Intermediate Act, 1921 and receiving grant-in-aid out of State fund and salaries of its teachers and employees is being paid under the provisions of U.P. High School and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971. 5. According to the writ petitioner a vacancy in the L.T. Grade arose in the institution on promotion of one Sri Shobh Nath, Assistant Teacher L.T. Grade as Lecturer in Economics on 21.10.1991. According to the writ petitioner two other posts of L.T. Grade Teachers fell vacant due to retirement of one Surya Narayan Mishra and Jagdiesh Chand Upadhayay on 30.6.1991 and 30.6.1993 respectively. On occurrence of the aforesaid vacancies the Committee of the Management of the institution (i.e. 4th respondent) resolved to appoint L.T. Grade Teachers in the institution in question. Consequently, on 14.10.1993 an advertisement was published in that regard. As per the writ petitioner, he along with others applied for appointment as Assistant Teacher in L.T. Grade and after facing the selection committee he was issued an appointment letter on 31.10.1993 whereunder he joined on 1.11.1993. As salary was not paid to the writ petitioner, he filed Writ Petition No.8001 of 1994 which came to be disposed off by order dated 4.12.2003 requiring the District Inspector of Schools, Allahabad (D.I.O.S. Allahabad) to pass appropriate orders for payment of salary. On 27.4.2006 the D.I.O.S. Allahabad proceeded to pass an order rejecting the claim of the writ petitioner, inter alia, on the grounds that (a) no minimum educational qualification was prescribed in the advertisement; (b) it has not been informed by the institution as to how many applications were received and how many candidates appeared for the interview ; (c) the interview list was not prepared as per the rules; (d) no proceedings relating to the selection was prepared; (e) what were the grounds for selection were not made clear and (f) in view of stay on the appointments, no selection could have been made. 6. Writ petitioner being aggrieved with the order dated 27.4.2006 preferred Writ Petition No.45941 of 2006, ((Kameshwar Prasad Pandey V. State of U.P. and others) which came to be allowed on 15.5.2007 while observing as under: In view of aforesaid discussion, there can be no scope for doubt to hold that the petitioners selection and appointment on the post of Assistant teacher in L.T. Grade on adhoc basis is valid in accordance with the provisions of law and his appointment shall be treated to be approved after expiry of seven days from the date of receipt of papers regarding approval of his appointment, therefore. he is entitled for payment of his salary from the date of his joining till date on the post in question. Contrary to it the appointment of respondent no. 5 on the post in question is contrary to law, void ab-initio and does not confer any right upon him and he is not entitled to be paid his salary from the state exchequer. Therefore, the view taken by D.I.O.S. contrary to it cannot be sustained accordingly the impugned order dated 27.4.2006 passed by D.I.O.S.. Allahabad is hereby quashed. In_the_result, a writ of mandamus is issued directing_the_D.I.O.S., Allahabad to verify the working of the petitioner from the Staff Attendance Register of the institution from the initial date of appointment till the date. In case the D.I.O.S. finds that the petitioner is continuously working on the said post since the date of his joining till date, he is directed to make payment of 50% salary of the petitioner as arrears of salary to the petitioner from the date of initial appointment till the date as revised from time to time within a period of three months from the date of production of certified copy of the order passed by this court to him. However, the D.I.O.S., Allahabad is directed to make current payment of salary to the petitioner forthwith regularly month to month as and when it becomes due to him until his services are terminated in accordance with the provisions of law. In given facts and circumstances of the case. I would like to clarify that salary paid to the respondent no.5 in pursuance of order dated 7.4.2006 till now shall not be recovered from him, but he shall not be paid any further salary from today - 7. According to the writ petitioner despite the fact that the appointment of the writ petitioner on the post of Assistant Teacher L.T. Grade was held valid in Writ Petition No.45941 of 2006, the writ petitioner was not allowed to join the institution for no fault of his. 8. Writ petitioner claims that he filed Contempt Petition No.3693 of 2007 alleging non compliance of writ court order. Thereafter on 12.9.2009, in compliance of the order dated 15.5.2007 passed in Writ Petition No.45941 of 2006, the D.I.O.S. Allahabad proceeded to hold that after verification from the record it was found that the writ petitioner (appellant herein) did not perform his duties as Assistant Teacher L.T. Grade from 11.5.2006 to 15.5.2007 therefore, he is not entitled to salary for the said period. It was further observed in the order dated 12.10.2009 that the writ petitioner was entitled to salary from 1.11.1993 till 10.5.2006 as also current salary. 9. As the writ petitioner was not given consequential benefits i.e. seniority, selection grade and promotional grade, he filed Writ-A No.4914 of 2016 which came to be disposed off by order dated 4.2.2016 thereby requiring D.I.O.S. Allahabad to address the claim set forth in petitioner's representation dated 14.1.2006 within a period of four months from the date of communication of the order. The D.I.O.S. Allahabad vide order dated 28.5.2016 referred the matter to the second respondent (Regional Level Committee Allahabad). Thereafter, by order dated 27.02.2017 the second respondent rejected the claim of the writ petitioner for regularisation, seniority, selection grade, promotional grade etc. on the premise that the claim for regularisation is not covered under the provisions of Section 33- G of the Uttar Pradesh Secondary Education (Service Selection Board) Act, 1982 (in short 1982 Act) because not only the appointment of the writ petitioner was not as per the Act and the rules governing the field but there was also interruption/break in service for the period starting from 11.5.2006 upto 15.5.2007. 10. Challenging the order dated 27.2.2017 of the second respondent the writ petitioner preferred Writ-A No.11764 of 2017 which came to be dismissed by the learned Single Judge vide impugned judgement and order dated 10.1.2020. 11. Learned counsel for the appellant has argued that the learned Single Judge fell in error in dismissing the writ petition against the order dated 27.2.2017 inasmuch as once the appointment of the writ petitioner (appellant herein) was found valid in Writ-A No.45941 of 2006, decided on 15.5.2007, the order whereof having attained finality, it was not open for the second respondent to question its validity. Moreover, the writ petitioner was not allowed to perform the duties on the post of Assistant Teacher L.T. Grade and, therefore, the writ petitioner had been approaching this court by filing writ petition, followed by contempt petition, thus, in absence of any fault on his part, it was a fit case wherein the writ petition ought to have been allowed and the order dated 27.2.2017 set aside with a direction to consider the case of the writ petitioner for regularisation ignoring the break in service from 11.5.2006 to 15.5.2007. He has further argued that this Court in the proceedings of Writ-A No.45941 of 2006, decided on 15.5.2007, was conscious of the stand of the writ petitioner that he was prevented from performing his duties as Assistant Teacher L.T. Grade therefore, a specific direction was issued to the D.I.O.S. Allahabad to verify/certify the working of the writ petitioner while making him admissible for payment of 50% salary for the period prior to passing of the order dated 15.5.2007 and current salary for the period subsequent to the order dated 15.5.2007. 12. According to the learned counsel for the appellant the aforesaid directions were issued keeping in mind that the appointment of the writ petitioner was valid and in accordance with the statutory provisions thus mere non payment of salary to the writ petitioner for a short period, on no fault of his, while he was restrained from performing his duties, cannot be a ground to negate the claim of the writ petitioner for regularisation, seniority and other consequential benefits. In this regard he relied upon the judgement in the case of Commissioner Karnataka Housing Board vs. C. Muddaiah (2007) 7 SCC 689. 13. Countering the said submissions, learned Standing Counsel has argued that the judgement and order passed by the learned Single Judge needs no interference particularly when it is admitted to the writ petitioner that he did not perform duties as Assistant Teacher in L.T. Grade from 11.5.2006 to 15.5.2007, thus his case is not covered under Section 33-G of the 1982 Act. It has been further argued that in terms of Section 33-G of the 1982 Act to claim regularisation, the writ petitioner has to be in continuous employment as a teacher right from his date of ad hoc appointment, which should fall between August 7, 1993 and January 25, 1999, till the enforcement of the said provision i.e. 22.3.2016. Submission of learned Standing Counsel is that once there is break in service, as determined in the order dated 12.09.2009 of the D.I.O.S. Allahabad, the same would come in the way of the writ petitioner from seeking regularisation. 14. We have considered the rival submissions and perused the record. 15. Before we address the question regarding entitlement of the writ petitioner for grant of regularisation, seniority and consequential benefits, it would be apposite to notice the relevant provisions governing regularisation of ad hoc teachers. By virtue of U.P. Act No. 7 of 2016 as gazetted on 22.3.2016, Section 33-G of the 1982 Act was inserted in the Uttar Pradesh Secondary Education (Selection Board) Act, 1982. According to Section 33-G of the Act, any teacher, other than the Principal or the Head Master, who was appointed by promotion or by direct recruitment in the lecturers grade or trained grade on or after August 7, 1993 but not later than January 25, 1999 against a short term vacancy which subsequently got converted into substantive vacancy or was appointed by promotion or direct recruitment on or after August 7, 1993, but not later than December 30, 2000, on ad hoc basis against substantive vacancy in accordance with Section 18, in the Lecturer grade or Trained Graduate grade, possess the qualification prescribed under the Act and has been continuously serving the institution from the date of such appointment upto the date of commencement of the U.P. Amendment Act 2016, is entitled to be considered for regularisation. . 16. According to the respondents there has been a break in service of the writ petitioner from 11.5.2006 to 15.5.2007, thus the case of the writ petitioner is not covered under Section 33-G of the 1982 Act. It is not in dispute that the writ petitioner was appointed as an Assistant Teacher L.T. Grade pursuant to the advertisement dated 13.10.1993 and he joined the said post on 1.11.1993. As he was not paid salary, he preferred Writ A No.8001 of 1994 which came to be disposed off on 4.12.2003 requiring the D.I.O.S. Allahabad to take decision. On 27.4.2006 the D.I.O.S. Allahabad disapproved the appointment of the writ petitioner being not as per law. Writ petitioner, thereafter, preferred Writ-A No.4594 of 2006 challenging the order dated 27.4.2006 which came to be allowed on 15.5.2007 holding the appointment of the writ petitioner valid while quashing the order dated 27.4.2006 and directing the D.I.O.S. Allahabad to pay current salary as also to verify/certify the working of the writ petitioner for the period prior to passing of the order dated 15.5.2007. The said order has attained finality. 17. Once the order dated 15.5.2007 passed in Writ Petition No.45941 of 2006 has attained finality, as it has not been subject matter of challenge before any court of law, the parties are bound by the said order. Records reveal that on 27.4.2006 approval to the appointment of the writ petitioner as Assistant Teacher L.T. Grade on ad hoc basis was rejected therefore, it is obvious that the writ petitioner could not perform the duties as Assistant Teacher L.T. Grade from 10.5.2006 to 15.5.2007 on account of this order. Ultimately, this order dated 27.4.2006 was set aside on 15.5.2007 in Writ Petition No.45941 of 2006 and the writ petitioner was accorded joining on 10.5.2007. In these circumstances, the break in service from 11.5.2006 to 15.5.2007 was not on account of any fault on the part of the writ petitioner. Rather, the writ petitioner was prevented from discharging his duties attached to the post of Assistant Teacher L.T. Grade. The action of the respondents was questioned in Writ Petition No.45941 of 2006, which was allowed. Thus, denying the benefit of continuous service to the petitioner would be rewarding the respondents for their own wrong. Moreover, consequent to the order dated 15.5.2007 passed in Writ Petitioner No.45941 of 2006, the D.I.O.S. Allahabad verified the working of the writ petitioner and certified that the writ petitioner was entitled to the payment of salary from 1.11.1993 i.e. the date of the appointment till 10.5.2006 and from 16.5.2007 onwards. 18. The Supreme Court in the case of C. Muddaiah (Supra) has held as under"- 33. The matter can be looked at from another angle also. It is true that while granting a relief in favour of a party, the court must consider the relevant provisions of law and issue appropriate directions keeping in view such provisions. There may, however, be cases where on the facts and in the circumstances, the court may issue necessary directions in the larger interest of justice keeping in view the principles of justice, equity and good conscience. Take a case, where ex facie injustice has been meted out to an employee. In spite of the fact that he is entitled to certain benefits, they had not been given to him. His representations have been illegally and unjustifiably turned down. He finally approaches a court of law. The court is convinced that gross injustice has been done to him and he was wrongfully, unfairly and with oblique motive deprived of those benefits. The court, in the circumstances, directs the authority to extend all benefits which he would have obtained had he not been illegally deprived of them. Is it open to the authorities in such case to urge that as he has not worked (but held to be illegally deprived), he would not be granted the benefits? Upholding of such plea would amount to allowing a party to take undue advantage of his own wrong. It would perpetrate injustice rather than doing justice to the person wronged. 34. We are conscious and mindful that even in absence of statutory provision, normal rule is "no work no pay". In appropriate cases, however, a court of law may, nay must, take into account all the facts in their entirety and pass an appropriate order in consonance with law. The court, in a given case, may hold that the person was willing to work but was illegally and unlawfully not allowed to do so. The court may in the circumstances, direct the authority to grant him all benefits considering "as if he had worked". It, therefore, cannot be contended as an absolute proposition of law that no direction of payment of consequential benefits can be granted by a court of law and if such directions are issued by a court, the authority can ignore them even if they had been finally confirmed by the Apex Court of the country (as has been done in the present case). The bald contention of the appellant Board, therefore, has no substance and must be rejected. 19. In view of the discussion above, while keeping in mind that the writ petitioner had served the institution for the requisite period and the break in service was on account of the own act of the respondents which was set aside by this court, we are of the opinion that the learned Single Judge fell in error while dismissing the writ petition inasmuch as the writ petitioner was entitled to be considered for regularisation in terms of Section 33-G of the Act of 1982. The order of the learned Single Judge dated 10.1.2020 as well as order of second respondent (Regional Level Committee Allahabad) dated 27.2.2017 are set aside. The second respondent is directed to consider the case of the writ petitioner for regularisation in light of the observations made above and grant consequent benefits in accordance with law within a period of three months from the date of production of a certified copy of this order. 20. The appeal stands allowed as above. Order Date :- 18.1.2023 piyush Digitally signed by :- PIYUSH KUMAR High Court of Judicature at Allahabad