High Court
Case Details
Court No. - 36 Case :- WRIT - A No. - 5791 of 2020 Petitioner :- Mahendra Singh Nain Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Vinod Kumar Singh Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J. Heard learned counsel for the petitioner and the learned Standing Counsel for the State respondents. Present petition has been filed against the order of the Regional Level Committee dated 26.2.2020 whereby the said Committee has rejected the claim of the petitioner for regularisation of his services on the post of Lecturer Civics at Kisan Inter College, Mohiuddinpur, Meerut. This is the fourth writ petition by the petitioner. Earlier the petitioner was appointed on the post of Lecturer Civics on ad hoc basis in July 1992. Undisputedly, he joined on that post at the above named institution on 10.7.1992. His payment of
Legal Reasoning
salary being withheld, the petitioner first approached this Court by means of Civil Misc. Writ Petition No. 5754 of 1993. By interim order granted in his favour at that stage itself, he continued to work and was paid due salary. That writ petition
Decision
was disposed of on 22.3.2005 with the following observations: "A counter affidavit has been filed and in the counter affidavit the District Inspector of Schools has denied the claim of the petitioners and has stated that as there was a ban issued by the State (Government dated 29.6.91 and no information regarding the vacancy and the appointment was sent by the Committee of Management, therefore, the appointment of the petitioners are not valid and no approval for the purpose of appointment and salary can be granted. The petitioners have denied the allegations made in the counter affidavit. In the rejoinder affidavit it has been stated that the ban, which was imposed, that has already been set aside by this Court and subsequently by the order dated 26.9.91 the same has been withdrawn by the State Government itself. Further submissions of the petitioners are that in view of the insertion of Section 33-C to the U.P. Secondary Service Education Board now the petitioners are entitled for consideration of the regularization. I have heard the learned counsel for the parties. In view of insertion of the aforesaid provision, it will be appropriate that the matter relating to the validity of the appointment of the petitioners and for regularization the Committee, which has been constituted, will consider the claim of the petitioners. In view of the aforesaid fact, the writ petition is disposed of finally with a direction to respondent no.4 to consider the case of the petitioners regarding validity of the appointment whether the proper procedure at the time of the appointment of the petitioners were followed and whether the petitioners are entitled for regularization. The consideration of the case of the petitioners will be done by the respondent no.4 preferably within three months from the date of production of a certified copy of this order before him. With these observations the writ petition is disposed of." While the claim for regularisation made by the petitioner remained pending, another person namely Smt.Manjulika came to be appointed through adjustment on the post of Lecturer Civics at the above described institution. Consequentially, vide order dated 23.8.2004, petitioner's services were terminated. This led to the second writ petition being filed by the petitioner being Civil Misc. Writ Petition No. 49859 of 2004, Mahendra Singh Nain Vs. State of U.P. and Others. That writ petition was allowed by order dated 15.9.2008 on the following terms: "In the result, the petition is allowed and the orders dated 23.8.04, 16.11.04 and 17.11.2004 are quashed. In case the employer came to the conclusion that the appointment of the petitioner is dehors the rules, then it is open for them to pass appropriate order in accordance with the provisions of the rules vide judgement and order dated 22.3.05 passed in the writ petition No. 5754 of 1993." Upon that writ petition being allowed, the petitioner again resumed duties. While his claim for regularsiation was kept pending, he attained the age of superannuation and retired from service on 31.3.2017. Since his retiral dues were withheld, petitioner approached this Court by means of Writ-A No. 6998 of 2018, Mahendra Singh Nain Vs. State of U.P. and Others. That writ petition came to be disposed of on 11.12.2018 with the following observations: "6. So far as right of the petitioner to continue is concerned, it is not in issue that this Court has already commanded the respondents to examine the petitioner's claim for regularization, in accordance with law. The direction issued by this Court on 22nd March, 2005 does not appear to have been complied with till date. Merely because the respondents have not examined petitioner's claim for regularization would not be a valid ground to deny grant of retiral benefits to the petitioner. The appropriate course for the authorities would be to first consider the petitioner's claim for regularization, in terms of the above extracted order dated 22.3.2005, and thereafter to consider petitioner's claim for grant of pensionary and other retiral benefits. 7. In the facts and circumstances, noticed above, this writ petition stands disposed of with a direction upon respondent no.2 to accord consideration to petitioner's claim for being regularized on the post of Lecturer in the institution concerned with reference to the applicable provisions of the U.P. Secondary Education Services Selection Board Act, 1982. The matter shall be placed before the Regional Level Committee and an appropriate decision in that regard would be taken, within a period of four months from the date of presentation of certified copy of this order, after affording an opportunity of hearing to the petitioner and also the Committee of Manager. Depending upon the outcome of such proceedings, an appropriate examination of petitioner's claim for grant of retiral and pensionary benefits would then be made by passing an appropriate order, within a further period of two months, thereafter." Pursuant to that order, impugned order has been passed. Two reasons have been assigned to reject the claim for regularisation made by the petitioner. First, it has been reasoned that petitioner's initial appointment being prior to 07.8.1983, the petitioner was not entitled to regularisation under Section 33G of the U.P. Secondary Education (Services Selection Board) Act, 1982 (hereinafter referred to as the 'Act'). Second, in view of the termination order suffered by the petitioner on 23.8.2004 and further in view of the fact, that order was set aside on 15.9.2008 whereas the petitioner retired in the year 2017, he did not complete ten years of qualifying service to earn eligibility to retiral dues. Upon hearing learned counsel for parties, the impugned order is wholly unsustainable in law. The facts are not in dispute. The petitioner's initial appointment was made in July 1992 pursuant whereto he joined duties at the above named institution on the post of Lecturer Civics is 10.7.1992. There is also no dispute, in view of the interim order granted in the first writ petition filed by the petitioner being Writ Petition No. 5754 of 1993, he continued to perform his duties and was paid due salary till November 2004. While disposing of that writ petition, the Writ Court provided for consideration of the petitioner's claim for regularisation under Section 33-C of the Act. No challenge was raised to that order by any of the respondents. Specific to the termination order suffered by the petitioner dated 23.8.2004, petitioner filed second writ petition being Civil Misc. Writ Petition No. 49859 of 2004 which came to be allowed by order dated 15.9.2008. The termination order dated 23.8.2004 was quashed. The only course left open to the respondents with respect to the appointment of the petitioner was to consider his claim in accordance with the remand order passed in the first writ petition dated 22.3.2005. Even that order (passed in the second writ petition) attained finality. In view of the above and in face of the clear statutory language of Section 33-C of the Act providing for consideration for regularisation of teachers appointed either through promotion or through direct recruitment during the period 14.5.1991 to 06.8.1993 and keeping in mind the undisputed date of initial appointment of the petitioner being 10.7.1992, the petitioner was clearly entitled to be considered for regularisation under Section 33-C of the Act. The fact that his services were terminated on 23.8.2004 and that order was quashed on 15.9.2008 in Writ Petition No. 49859 of 2004 pursuant whereto the petitioner rejoined his post did not and it could not amount to a second or fresh appointment. The date of initial appointment would always have to be retained as 10.7.1992 and no other or later date. Therefore, the first reason mentioned in the impugned order that the petitioner was not entitled to regularisation under Section 33G of the Act is based on complete misreading of the law. The fact of date of initial appointment being not in dispute, respondents were obligated to consider the claim for regularisation made by the petitioner only with reference to the date 10.7.1992. Therefore, the only provision under which the claim for regularisation may have been considered would be Section 33-C of the Act and no other. As to the second reasoning, same is equally fallacious. Once the termination order dated 23.8.2004 had been quashed by this Court on 15.9.2008, for the purposes of computing continuous service rendered by the petitioner, that order stood effaced from record. It could not be read, to any extent to create ineligibility in the claim of the petitioner either for regularisation or for computation of qualifying service for the purpose of pension and other retiral dues. It may be true that while allowing Writ Petition No. 49859 of 2004, the Writ Court granted no relief of payment of arrears of salary however on its own force, the relief granted to quash the termination order would always lead to a legal consequence of the petitioner being treated to have notionally remained in service during the period of the termination order having remained in existence. It would be absurd to conclude otherwise. Once the termination order is found to be invalid in law and is quashed, it could leave no impression or trace or shadow that may impinge the rights of the petitioner. In fact, to accept the second reason given in the impugned order would be to accept the existence of the termination order even to a limited extent. Accordingly, the writ petition succeeds and is allowed. The impugned order dated 26.2.2020 is quashed. In view of absence of any other dispute as to the fact and the law being clear, a mandamus is issued to respondent No. 2 to regularise the services of the petitioner in terms of Section 33-C of the Act. The petitioner is entitled to payment of full retiral dues including pension which may be computed and paid out within a period of three months from today together with interest @ 8% from the date of entitlement to the date of actual payment. Interest has been awarded to the petitioner as he has been made to suffer at the hands of the State agencies for very long. Rule of law can not commend or find desirable institution of four writ petitions by any litigant for the same relief. The claim for regularisation ought to have been decided appropriately pursuant to the first direction issued by the Court in the year 2005. Not only the respondents failed to decide that claim at that stage, they did not take notice of the observations made in the second order passed in the year 2008. It took the third order passed by this Court to ensure that the respondents take up the claim for regularisation of the petitioner well after he retired from service after 25 years of service. Even there, that claim was rejected on flimsy and non-existent grounds. Order Date :- 4.11.2022 Faraz Digitally signed by FARAZ AHMAD Date: 2022.11.09 09:50:35 IST Reason: Location: High Court of Judicature at Allahabad