High Court · 2025

Judgment

1. This writ petition is off-shoot of Writ A No. 23213/2011, however, facts are slightly different, therefore, is being decided separately.

2. In present case, respondent-4 has approached District Basic Education Officer in the year 2013 that his name was mentioned in list which required to be forwarded for purpose of grant-in- aid, however, at later stage, it was informed that services of said respondent-4 were terminated by a proposal dated 20.07.2004 due to long absence. However, not only it was an ex-parte order but it was never approved by B.S.A.

3. The District Basic Education Officer vide order dated

25.02.2015 has interfered and set aside the order of termination and it was directed that said respondent be paid salary. Aforesaid order is impugned in this writ petition.

Sri Hemant Kumar, learned counsel for petitioner has submitted that respondent-4 was terminated in the year 2004 and at a very belated stage i.e. after more than 9 years, he has approached concerned respondent who has interfered vide impugned order. However, he is not able to dispute that proposal of Committee of Management for termination of services of respondent-4 was required to be approved by B.S.A., however, in present case, there was no such approval.

5. Learned counsel for petitioner has further submitted that proposal was send to office of B.S.A. and it could be considered to be deemed to be approved since subsequently on the vacant post, due to dismissal of respondent-4, a fresh advertisement was published.

6. Per contra, Sri Samar Singh, learned counsel for respondent- 4 has referred paragraph 8, 34 and 35 of counter affidavit which are quoted below :- “8. That the contents of paragraph Nos. 9 & 10 of the writ petition are not accepted, and it is submitted that the photo copy of news paper/ proposal of Management Committee as annexure No. 4 and 5 to writ petition are not correct as the same is not available in record of office of answering respondent and it appears that proposal of management was subsequently developed because no receiving receipt of proposal is not annexed in writ petition nor the same is available in file of Institution in the office of answering respondent. Therefore it is not clear that the notice regarding absence of respondent No.4 was published in any news paper.

34. That, the contents of paragraph No. 6, 7, 8, 9, 10 and 11 of the writ petition are absolutely wrong, hence denied, and in its reply, it is stated that neither any notice nor opportunity of any kind have been given to the deponent by Manager regarding his alleged termination. Even Annexure-1, 2, 3, 4, 5 and 6 of the writ petition are forged and fabricated documents and same have been prepared by Manager to give colour of his case, and to 2 validate the alleged appointment of Km. Shilpa Singh daughter of Manager and Smt. Ram Kumari wife of Deputy Manager. In fact since the date of his appointment, deponent is continuously working and Km. Shilpa Singh and Smt. Ram Kumari have not worked even a single day on their respective posts; but on the basis of forged and fabricated documents prepared by Manager of the institution and with collusion Educational Authorities, salary of Km. Shilpa Singh and Smt. Ram Kumari were withdrawn as finding recorded by Director of Education; and considering these all facts and circumstances, Zila Basic Shiksha Adhikari, Ballia have passed the order dated 25.02.2015 which is just proper and valid in eye of law. Local

35. That, the contents of paragraph No. 12 of the writ petition are absolutely wrong, hence denied, and in its reply, it is stated that in year, 2006 neither sanctioned post of Assistant Teacher was vacant nor deponent was validly terminated, but to legalize his part, Manager of committee of management have submitted an application before Zila Basic Shiksha Adhikari, Ballia for permission to make appointment of Assistant Teacher on the post of deponent; and due to collusive terms with the then Zila Basic Shiksha Adhikari, Ballia, he has succeeded to get order dated 30.03.2006 to make advertisement for appointment of Assistant Teacher on the place of deponent; but in pursuance of order dated 30.03.2006 neither vacancy have been advertized nor any teacher have been appointed in pursuance of order dated 30.03.2006; hence it appears that only to legalize his part, Manager has obtained such order to place his daughter under sanctioned strength of teachers; and hence Annexure No.7 of the writ petition is also not a genuine document.” 3

7. Learned counsel has further submitted that said respondent is still working and his unpaid salary is protected by interim order passed by this Court.

8. At this stage, learned counsel has not disputed that respondent-4 was aged about 56 years in 2015, as such, now he has crossed age of superannuation.

9. Heard learned counsel for parties and perused the record.

10. The respondent-4 was sitting on his legal rights. He was terminated from services way back in the year 2004 and he approached concerned B.S.A. in the year 2013 i.e. about 9 years and impugned order was passed in the year 2015 which is challenged in this writ petition.

11. Interim order dated 27.04.2015 would also not help to respondent-4 since his salary was not protected and now he has already crossed age of superannuation. There is no proof that respondent-4 has worked during pendency of this writ petition. The interim order dated 27.04.2015 is quoted below. No clarification/modification application was filed by the said respondent :- “Heard Sri Hemant Kumar, counsel for the petitioner, Standing Counsel for respondents No.1 and 3, Sri Sanjay Chaturvedi for respondent No.3 and Sri Rahul Agarwal for respondent No.4. Challenge in this writ petition is to the order dated 25.2.2015 passed by the District Basic Shiksha Adhikai by which he holds that the termination of service of respondent No.4 was not approved by the competent authority and, therefore, directs for payment of his salary. It appears, services of the respondent No.4 were terminated vide resolution of the 4 Committee of Management dated 20.7.2004. The institution was brought in grant-in-aid on 31.3.2007. On the said date five posts of teachers and two posts of Paricharak were approved. The name of respondent No.4 was not included in said list of five teachers meaning thereby that he was not working in the said institution on 31.3.2007, perhaps for the reason that his services were already terminated on 20.7.2004 and stood approved on 28.3.2006 with the issuance of direction to fill up the said post after due advertisement. In view of the above, the finding that there was no approval to the termination of services of respondent No.4 does not appear to be correct. It is accepted by the parties that the respondent No.4 has not drawn salary of the most of the teachers since August, 2004. The matter requires examination. Let the respondents file counter affidavit within one month. Two weeks thereafter are allowed to petitioner for filing rejoinder affidavit. List for admission along with record of Writ Petition No.23213 of 2011. In the meantime, the operation of the impugned order dated 25.2.2015 shall remain stayed but in case the writ petition is ultimately allowed respondent No.4 shall be entitle to the salary for the period the petition remains pending.”

12. Court takes note that grounds mentioned in impugned order is legally sustainable since proposal of termination of respondent- 4 was not approved by B.S.A. i.e. a mandatory requirement, however, a fact that the petitioner has approached the concerned respondent after about a decade was not taken note of.

13. Otherwise also, since this writ petition is pending for last more than 10 years and there is no effective interim order in favour of the respondent-4, therefore, at this stage, to allow writ 5 petition would in fact allow respondent-4 to get salary without any work and that he has already crossed age of superannuation, therefore, it would be against interest of justice also.

14. Court only has sympathy with respondent-4, as, at belated stage, even though impugned order has legally sustainable grounds, its legal consequence may not follow, therefore, without interfering with impugned order and without granting any consequential relief to respondent-4, this writ petition is dismissed. Order Date :- April 11, 2025 Nirmal Sinha [Saurabh Shyam Shamshery, J.] NIRMAL SINHA High Court of Judicature at Allahabad 6

Sri Hemant Kumar, learned counsel for petitioner has submitted that respondent-4 was terminated in the year 2004 and at a very belated stage i.e. after more than 9 years, he has approached concerned respondent who has interfered vide impugned order. However, he is not able to dispute that proposal of Committee of Management for termination of services of respondent-4 was required to be approved by B.S.A., however, in present case, there was no such approval.

5. Learned counsel for petitioner has further submitted that proposal was send to office of B.S.A. and it could be considered to be deemed to be approved since subsequently on the vacant post, due to dismissal of respondent-4, a fresh advertisement was published.

6. Per contra, Sri Samar Singh, learned counsel for respondent- 4 has referred paragraph 8, 34 and 35 of counter affidavit which are quoted below :- “8. That the contents of paragraph Nos. 9 & 10 of the writ petition are not accepted, and it is submitted that the photo copy of news paper/ proposal of Management Committee as annexure No. 4 and 5 to writ petition are not correct as the same is not available in record of office of answering respondent and it appears that proposal of management was subsequently developed because no receiving receipt of proposal is not annexed in writ petition nor the same is available in file of Institution in the office of answering respondent. Therefore it is not clear that the notice regarding absence of respondent No.4 was published in any news paper.

34. That, the contents of paragraph No. 6, 7, 8, 9, 10 and 11 of the writ petition are absolutely wrong, hence denied, and in its reply, it is stated that neither any notice nor opportunity of any kind have been given to the deponent by Manager regarding his alleged termination. Even Annexure-1, 2, 3, 4, 5 and 6 of the writ petition are forged and fabricated documents and same have been prepared by Manager to give colour of his case, and to 2 validate the alleged appointment of Km. Shilpa Singh daughter of Manager and Smt. Ram Kumari wife of Deputy Manager. In fact since the date of his appointment, deponent is continuously working and Km. Shilpa Singh and Smt. Ram Kumari have not worked even a single day on their respective posts; but on the basis of forged and fabricated documents prepared by Manager of the institution and with collusion Educational Authorities, salary of Km. Shilpa Singh and Smt. Ram Kumari were withdrawn as finding recorded by Director of Education; and considering these all facts and circumstances, Zila Basic Shiksha Adhikari, Ballia have passed the order dated 25.02.2015 which is just proper and valid in eye of law. Local

35. That, the contents of paragraph No. 12 of the writ petition are absolutely wrong, hence denied, and in its reply, it is stated that in year, 2006 neither sanctioned post of Assistant Teacher was vacant nor deponent was validly terminated, but to legalize his part, Manager of committee of management have submitted an application before Zila Basic Shiksha Adhikari, Ballia for permission to make appointment of Assistant Teacher on the post of deponent; and due to collusive terms with the then Zila Basic Shiksha Adhikari, Ballia, he has succeeded to get order dated 30.03.2006 to make advertisement for appointment of Assistant Teacher on the place of deponent; but in pursuance of order dated 30.03.2006 neither vacancy have been advertized nor any teacher have been appointed in pursuance of order dated 30.03.2006; hence it appears that only to legalize his part, Manager has obtained such order to place his daughter under sanctioned strength of teachers; and hence Annexure No.7 of the writ petition is also not a genuine document.” 3

7. Learned counsel has further submitted that said respondent is still working and his unpaid salary is protected by interim order passed by this Court.

8. At this stage, learned counsel has not disputed that respondent-4 was aged about 56 years in 2015, as such, now he has crossed age of superannuation.

9. Heard learned counsel for parties and perused the record.

10. The respondent-4 was sitting on his legal rights. He was terminated from services way back in the year 2004 and he approached concerned B.S.A. in the year 2013 i.e. about 9 years and impugned order was passed in the year 2015 which is challenged in this writ petition.

11. Interim order dated 27.04.2015 would also not help to respondent-4 since his salary was not protected and now he has already crossed age of superannuation. There is no proof that respondent-4 has worked during pendency of this writ petition. The interim order dated 27.04.2015 is quoted below. No clarification/modification application was filed by the said respondent :- “Heard Sri Hemant Kumar, counsel for the petitioner, Standing Counsel for respondents No.1 and 3, Sri Sanjay Chaturvedi for respondent No.3 and Sri Rahul Agarwal for respondent No.4. Challenge in this writ petition is to the order dated 25.2.2015 passed by the District Basic Shiksha Adhikai by which he holds that the termination of service of respondent No.4 was not approved by the competent authority and, therefore, directs for payment of his salary. It appears, services of the respondent No.4 were terminated vide resolution of the 4 Committee of Management dated 20.7.2004. The institution was brought in grant-in-aid on 31.3.2007. On the said date five posts of teachers and two posts of Paricharak were approved. The name of respondent No.4 was not included in said list of five teachers meaning thereby that he was not working in the said institution on 31.3.2007, perhaps for the reason that his services were already terminated on 20.7.2004 and stood approved on 28.3.2006 with the issuance of direction to fill up the said post after due advertisement. In view of the above, the finding that there was no approval to the termination of services of respondent No.4 does not appear to be correct. It is accepted by the parties that the respondent No.4 has not drawn salary of the most of the teachers since August, 2004. The matter requires examination. Let the respondents file counter affidavit within one month. Two weeks thereafter are allowed to petitioner for filing rejoinder affidavit. List for admission along with record of Writ Petition No.23213 of 2011. In the meantime, the operation of the impugned order dated 25.2.2015 shall remain stayed but in case the writ petition is ultimately allowed respondent No.4 shall be entitle to the salary for the period the petition remains pending.”

12. Court takes note that grounds mentioned in impugned order is legally sustainable since proposal of termination of respondent- 4 was not approved by B.S.A. i.e. a mandatory requirement, however, a fact that the petitioner has approached the concerned respondent after about a decade was not taken note of.

13. Otherwise also, since this writ petition is pending for last more than 10 years and there is no effective interim order in favour of the respondent-4, therefore, at this stage, to allow writ 5 petition would in fact allow respondent-4 to get salary without any work and that he has already crossed age of superannuation, therefore, it would be against interest of justice also.

14. Court only has sympathy with respondent-4, as, at belated stage, even though impugned order has legally sustainable grounds, its legal consequence may not follow, therefore, without interfering with impugned order and without granting any consequential relief to respondent-4, this writ petition is dismissed. Order Date :- April 11, 2025 Nirmal Sinha [Saurabh Shyam Shamshery, J.] NIRMAL SINHA High Court of Judicature at Allahabad 6