High Court
Case Details
Neutral Citation No. - 2023:AHC:168164 Court No. - 35 Case :- WRIT - A No. - 18351 of 2022 Petitioner :- Ram Baboo Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C. Connected with Case :- WRIT - A No. - 12874 of 2023 Petitioner :- Ram Baboo Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Alok Mishra Counsel for Respondent :- C.S.C. Hon'ble Vikas Budhwar,J. Since, common questions of law are involved in Writ - A No. 18351 of 2022, (in short 'leading writ petition') as well as Writ - A No. 12874 of 2023, (in short 'connected writ petition'), thus, with the consent of the parties, the writ petition is being decided by composite order. Heard Sri Alok Mishra, learned counsel for the writ petitioner in the leading writ petition and the connected writ petition as well as Sri Ajeet Kumar Singh, learned Additional Chief Standing Counsel, who appears for respondent nos.1, 2 and 3. Though the order-sheet in the leading writ petition reveals that the leading writ petition was entertained on 06.12.2022, while granting interim protection and issuing notice to the respondent nos.4 and 5. However, the order-sheet reveals that so far as the fourth respondent is concerned delivery is not confirmed as per postal tracking report nor any unserved notice is received in the office as yet and so far as the fifth respondent is concerned the unserved notice from fifth respondent is received with postal remark "अपपूरर पतता अत: पቚኔ्ቌक कको वतापस", meaning thereby that the unserved notice has been received. In view of the nature of the order, which is being proposed to be passed today, the Court is not issuing any notice to the fourth and
Decision
the fifth respondent in both the writ petitions. However, providing that the fourth and the fifth respondent would have say in the matter before any order is passed either way. The facts of the case as worded in both the writ petitions are that the fourth respondent, Sarvodaya Kendra Uchachattar Madhyamik Vidyalaya, Shaheed Nagar, District Jalaun is a recognized aided educational institution, which is governed under the provisions of the U.P. Intermediate Education Act, 1921 and the U.P. High School and Intermediate College (Payment of Salaries of Teachers and Other Employees) Act, 1971. The writ petitioner claims to have been appointed as a Class IV in the fourth respondent's institution on 10.09.1986. An approval order is also stated to have been issued in favour of the writ petitioner by the second respondent, District Inspector of Schools, on 10.10.1986 with a condition that the appointment of the writ petitioner as a Class IV employee was against the vacancy, which had arisen, on account of termination of the services of one Sri Teeka Ram, which was subject matter of challenge before this Court in Writ Petition No. 20225 of 1987 (Teeka Ram vs. The District Inspector of Schools, Jalaun at Orai and others). In paragraph no.8 of the writ petitioner, it has been further asserted that the writ petition preferred by one Sri Teeka Ram, son of Shri Umrao, Writ Petition No. 20225 of 1987 came to be dismissed by this Court on 16.03.2004, a copy whereof has been annexed as Annexure No.4, reference whereof has been made in paragraph no.8 of the writ petition. As per the writ petitioner, he continued to function in the post in question as the rider, which was appended in the approval orders stood extinguished. The writ petitioner represented the matter before the respondents for the payment of salary and other benefits, however the same was not even acceded to. The writ petitioner in paragraph no.19 has given the illustration in the case of one Sri Ramesh Chandra Tripathi and Sri Satya Prakash Dwivedi, who had preferred Writ Petition No. 1356 of 1980, in which on 20.01.1980, Sri Ramesh Chandra Tripathi was entitled to certain benefits. Reference whereof has been given in the case of Sri Satya Prakash Dwivedi that he also filed writ petition but the number of the writ petition has not been mentioned. In paragraph no.20 of the writ petition, the writ petitioner further claims to have been preferred Writ Petition No. 7615 of 1989, in which an interim mandamus was issued on 19.04.1989 and thereafter on 11.05.1992, an order was passed, which reads as under :- "Despite may order dated 23.04.92 the alleged order of the Director dismissing petitioner's representation which has been refer to in paragraph 11 of the writ petition has not been produced. In the circumstances, I confirm the order dated 19.04.1989, and direct that the petitioner will be paid salary as class IV employee regularly and shall also be paid arrears for the period for which he has worked within two months of production of a certified copy of this order The case is reliaged, and it need not be treated as a tied up to me." Since, the order of the Writ Court was not being complied with, so the writ petitioner claims to have resorted to contempt proceedings, while filing Contempt Application No. 1657 of 1992, in which notices were issued on 24.09.1992 and thereafter in paragraph no.23, according to the writ petitioner, the writ petitioner was paid arrears of salary from February, 1988 till September 1992 in that regard. According to the writ petitioner, the said writ petition was rendered infructuous on 20.08.2002. In paragraph no.26 of the writ petition, it is further asserted that without issuing any show cause notice, now two orders have been passed 12.09.2022 and 16.09.2022, the second respondent, District Inspector of Schools, Jalaun, by which recovery has been sought to be made from the writ petitioner. Questioning both the orders, the writ petitioner had filed the leading writ petition. In the said writ petition on 06.12.2002, this Court proceeded to passed the following order :- "1. Upon written instructions, it could not be shown that the original order passed by respondent no.2/District Inspector of Schools, Jalaun dated 13.10.1988, amongst others, providing for continued salary payment during pendency of the dispute between the petitioners and one Teeka Ram, has not been set side or withdrawn. 2. Therefore, the fact that the petitioner may not have disclosed the outcome of the writ petition filed by him, would remain in the backdrop. That dismissal of the writ petition may never have impact of recall or setting aside of the original order dated 13.10.1988 passed by DIOS. 3. Issue notice to respondent nos. 4 and 5 fixing 21.2.2023. 4. All respondents are granted six weeks time to file counter affidavit. Petitioner shall have two weeks thereafter to file rejoinder affidavit. 5. List on 21 February 2023. 6. In the meanwhile, the operation and effect of the impugned orders dated 12.09.2022 and 16.09.2022 shall remain stayed." In the meantime, as per the writ petitioner he was accorded promotion from the Class III post as a Junior Assistant on 06.04.2013. As the writ petitioner stood superannuated on 31.05.2023 on the post of Junior Assistant and his pensionary benefits were not being processed with, rather to the contrary the writ petitioner has invited the attention of the Court towards Annexure No.20 at Page No.130 of the paper book. Reference whereof is made in paragraph no.32 of the writ petition, so as to further contend that the second respondent, District Inspector of Schools, Jalaun has even written a letter dated 19.07.2023 to the fourth and the fifth respondent to furnish the documents, so as to enable the processing of the pension, GPF and other retiral benefits but nothing has been done in this regard. This eventuality led to filing of the connected writ petition with a prayer for a direction to the second respondent to grant pension, GPF and other retiral benefits accrued to the writ petitioner post retirement on 31.05.2022. In the said writ petition, a counter affidavit has been filed by the learned Standing Counsel on behalf of respondent nos.1, 2 and 3, to which the writ petitioner today has filed the rejoinder affidavit. This Court on 08.08.2023 connected Writ A No. 12874 of 2023 along with the records of the leading writ petition, while passing the following orders :- "Put up this case day after tomorrow i.e. 10.08.2023 as fresh along with the records of Writ A No. 18351 of 2022 (Ram Baboo Vs. State of U.P. & 4 Ors.)." Today, both the writ petitions have been connected and listed as a fresh case at Serial No. 25. Sri Alok Mishra, learned counsel for the writ petitioner submits that though initially the approval was accorded to the appointment of the writ petitioner as a Class IV employee on account of the vacancy which had arisen due to the termination of the services of Sri Teeka Ram and his writ petition stood dismissed and the writ petitioner on the basis of an order passed in Writ Petition No. 7615 of 1989 was paid salary but ultimately the said interim mandamus transformed into a confirmation and the writ petitioner was even accorded promotion as a Class III employee and he superannuated, thus the recovery whatsoever, which was made on the pretext that the Writ Petition No. 7615 of 1989 stood dismissed will have no relevance as it is not in dispute that the writ petitioner continuously worked on the post in question. He further submits that the writ petitioner has since retired, thus he is entitled to all the benefits of the pension and it cannot be withheld in that regard, as even otherwise, the writ petition so preferred in the year 1989 has outlived its utility and its efficacy in that regard as Sri Teeka Ram did not obtained any positive orders so as to dislodge the writ petition. He further submits that the writ petitioner is also possessing an interim order passed on 06.12.2022, on the basis whereof the respondents were restrained from making any recovery. Sri Ajeet Kumar Singh, learned Additional Chief Standing Counsel on the other hand submits that no doubt as per the writ petitioner and the stand taken by the respondents the appointment of the writ petitioner was approved against the vacancy of Sri Teeka Ram and it was subject to the litigation so instituted by Sri Teeka Ram before this Court, but once the writ petition stood dismissed, the writ petitioner though claims to be working but the recovery so sought to be made from him is perfectly valid, as the order on the basis whereof the salary was being extended to the writ petitioner has itself stands extinguished post dismissal of the writ petition. He further submits that the writ petitioner ,merely on the basis of an interim order cannot be entitled to granted the benefits on the said post in question, as the writ petitioner has to stand on his own leg and it cannot be in any manner whatsoever confer any benefit from an interim order, particularly, when the writ petition stood dismissed in view of the law laid down by the Hon'ble Apex in the case of Kanoria Chemicals and Industries Ltd. vs. U.P. State of Electricity Board reported in 1997 5 SCC 772. He further submits that since a conscious decision is to be taken by the authorities so let the matter be remitted back to the District Inspector of Schools, Jalaun, second respondent to pass a fresh orders taking into account each and every aspect of the matter germane to the issue in question. According to Sri, Ajeet Kumar Singh, learned Additional Chief Standing Counsel, he does not propose to file any response to the connected writ petition as already response has been filed in the leading writ petition. I have heard the learned counsel for the parties and perused the record. Undisputedly, the writ petitioner was appointed as a Class IV employee against the post of one Sri Teeka Ram. The order of the approval of the second respondent is annexed as Annexure No.2 at Page No. 31 of the paper book. Reference whereof has been given in paragraph no.6, whereby the writ petition was appointed as a Class IV employee against the vacancy of one Sri Ram Babu and the said approval was a conditional one subject to the fate and the outcome of the litigation preferred at the behest of Sri Teeka Ram. It is further evident from the record that the Writ Petition No. 20225 of 1987 preferred by Sri Teeka Ram dismissed on 16.03.2004 and further the writ petitioner claims to have preferred Writ Petition No. 7615 of 1989, in which, on 19.04.1989 an interim mandamus was issued, which was confirmed on 11.05.1999, a copy whereof is annexed as Annexure No.6 at page no.68-A of the paper book. According to the writ petitioner, the said writ petition stood dismissed on 20.08.2002 for want of prosecution and further the writ petitioner as per the averments contained in paragraph nos. 23 and 24 has sought to contend that he had been paid arrears of salary from February 1998 till 1992 and further from the record, it is also apparent that the second respondent, District Inspector of Schools, Jalaun on 06.04.2013 had promoted the writ petitioner on the post of Junior Assistant, reference whereof has been given in paragraph no.24 of the writ petition. The said facts have been admitted to the learned Standing Counsel in the counter affidavit to the leading writ petition. However, since the Writ Petition No. 7615 of 1989 stood dismissed for non prosecution which entailed the respondents to issue recovery on 12.09.2022 and 16.09.2022. Though, as per the pleadings set forth in the writ petition, the writ petitioner was paid salary up to 1988 and the salary was withheld with effect from March, 1988 and ultimately a general order was passed on 08.08.1988 cancelling the selection of the writ petitioner also, which was communicated by virtue of an order dated 13.08.1988. However, it is pleaded that on 25.08.1988, a representation was preferred by the writ petitioner and on 26.09.1988, the second respondent District Inspector of Schools, Jalaun held that the appointment of the writ petitioner had been made against the duly sanctioned post and in compliance thereof a fresh order was passed by the fifth respondent, Principal of the institution in question on 26.09.1988 and again when the recognition was not granted by the fourth respondent institution, a fresh order was passed on 13.10.1988 by the second respondent, District Inspector of Schools directing the fourth respondent, Committee of Mangement to dislodge the service to the petitioner and vide order dated 18.01.1988, a fresh order was passed by the second respondent, District Inspector of Schools, Jalaun for payment of salary, thus the issue needs reconsideration by the second respondent, District Inspector of Schools, Jalaun. As rightly pointed out by Sri Ajeet Kumar Singh, learned Additional Chief Standing Counsel, who appears for the respondent nos.1, 2 and 3 that the matter be remitted back to the respondents to pass a fresh order. Thus, this Court instead of taking the task of addressing the issue on merits is remitting the matter back to the respondents to pass a fresh orders in accordance with law. Both the writ petitions are being decided in the following manner :- (a) The order dated 12.09.2022 / 16.09.2022, passed by the second respondent, District Inspector of Schools, Jalaun and Finance & Accounts Officer (Secondary Education) in the Office of District Inspector of Schools, Jalaun are set aside. The matter stands remitted back to the second respondent to pass a reasoned and a fresh order bearing in mind the following fundamental and core issues :- (i) The nature of the appointment of the writ petitioner in Class IV post; (b) The issue with regard to the promotion of the writ petitioner as Junior Assistant; (c) The continuance of working of the writ petitioner, as per the approval order which is stated to be issued by the second respondent, District Inspector of Schools, Jalaun. The import and the impact of interim mandamus, confirmation of the same and dismissal of the Writ Petition No. 7615 of 1989 (Sri Ram Babu vs. State of U.P.) as in default on 20.08.2002. The issue with regard to the status of the Writ Petition No. 20225 of 1987 (Tika Ram vs. State of U.P. And Others); (d) The issue with regard to the continuance of the writ petitioner after examining the service records while summoning the respondent nos.4 and 5. The issue with regard to the payment of post retiral benefits including pension etc. to the writ petition; (e) Any other incidental or ancillary issue which would govern the subject; For the purposes of doing justice to the parties, the following further directions are issued :- (i) The writ petitioner shall file a comprehensive representation along with the self-attested copy of the writ petition before the second respondent, District Inspector of Schools, Jalaun by 30.08.2023; (ii) On the receipt of the representation so preferred by the writ petitioner, the second respondent, District Inspector of Schools, Jalaun shall fix 11.09.2023, as a date after putting the fourth and the fifth respondent to notice in advance in writing. On that date, the submissions so submitted by the parties shall be exchanged. On 18.09.2023, the date of hearing shall be fixed and on that date the matter be heard. The final orders be passed by 30.09.2023. Since, the fourth and the fifth respondents are not represented in the Court, though they have been made party-respondents in the writ petition, thus passing of this order may not be construed to be an expression that this Court has adjudicated upon the merits of the matter. However, the second respondent, District Inspector of Schools, Jalaun shall pass a speaking and reasoned order strictly in accordance with law after examining the record without being influenced or obsessed by any of the observations made herein above. Till the passing of the orders i.e. 30.09.2023, whichever is earlier, the interim protection granted to the writ petitioner, pursuant to the order dated 06.12.2022 in Writ A No. 18351 of 2022 (Ram Babu vs. State of U.P.) shall continue. With the aforesaid observations, the writ petition stands disposed off. Order Date :- 21.8.2023 S Rawat Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad