Smt. Reeta Jain vs State Of U.P.Through Secy. Basic Education Govt.

1. Heard Shri Girish Kumar, learned counsel for the petitioner, Shri Ram Kumar Mishra, learned Standing Counsel for the respondent no. 1 & 3, Shri Ran Vijay Singh, learned counsel for the respondent no. 2, Shri Shivam Sharma, learned counsel for the respondent no. 4 and Shri Shailendra Singh Rajawat, learned counsel for the respondent no. 5.

2. The case has a checkered history which would be narrated below. However, at the very outset, learned counsel for the petitioner states that the petitioner was appointed on 28.1.1971 as Assistant Teacher (Basic) and continued to work till 1.1.1987 when she submitted an application for medical leave from 2.1.1987 to

15.5.1987 which was duly sanctioned but thereafter she failed to turn up and failed to join duty. However, she having completed qualifying service of more than 10 years to be eligible for pension and other retiral dues from 28.1.1971 till 15.5.1987, as such he confines his prayer to the petitioner being given pension and other retiral dues for the aforesaid period.

3. Considering the aforesaid, the Court now proceeds to consider the history of the case. 2 WRIA No. 1262 of 2011

4. The petitioner was appointed as Assistant Teacher (Basic) on

28.1.1971. On 1.1.1987 she claims to have submitted medical leave application from 2.1.1987 to 15.5.1987 which was duly sanctioned by the competent authority. Subsequent thereto she failed to join the duties. The grounds taken for not joining duties / not reporting back is the medical treatment of the petitioner.

5. Nevertheless she filed a writ petition in the year 2004 before this Court at Allahabad which according to learned counsel for the petitioner was dismissed in the year 2006 on the ground of jurisdiction. Thereafter, the petitioner filed Writ Petition No. 1710 (SS) of 2006 before this Court in the year 2006. The same was decided vide judgement and order 29.4.2010 directing respondents to consider the representation of the petitioner.

6. In pursuance thereof the representation of the petitioner was rejected vide order dated 23.02.2011, a copy of which is annexure 1 to the writ petition, by the Director, Basic Education, Government of U.P., Lucknow i.e. respondent no. 3 with a direction to the District Basic Shiksha Adhikari to take action against the petitioner in accordance with financial handbook. In pursuance thereof District Basic Shiksha Adhikari issued a notice dated 5.3.2011 requiring the petitioner to submit explanation for unauthorised absence since the year 1987, a copy of which is annexure RA-1 to the rejoinder affidavit dated 25.5.2023. In pursuance thereof the petitioner submitted a reply dated 15.3.2011. The said reply has not been found to be tenable and consequently by means of order impugned dated 1.4.2011, a copy of which is annexure 15 to the writ petition, the petitioner has been removed from service.

7. The ground urged by learned counsel for the petitioner raising a challenge to the orders impugned dated 1.4.2011 and 23.2.2011 are that as the petitioner was a regular employee working as Assistant Teacher consequently her service could not have been dispensed with in cursory manner as has been adopted by the respondents wherein without holding any regular inquiry her service has been dispensed with and thus it is prayed that the 3 WRIA No. 1262 of 2011 orders impugned be set aside with a further direction to count the entire period of service of the petitioner since 28.1.1971 till

30.6.2011 i.e. the actual date of retirement of petitioner for all benefits including arrears of pay and any other retiral dues.

8. The same is opposed by learned counsel for the respondents that even if the respondents have not adopted the disciplinary proceedings against the petitioner yet the conduct of the petitioner wherein she failed to report back after end of her medical leave from 15.5.1987 and has only approached this Court at Allahabad in the year 2004 by filing a writ petition i.e. after a period of almost 17 years would take her case to one of abandonment of service as has been considered by Hon'ble Supreme Court in the case of The State of Uttar Pradesh and others vs Rajmati Singh passed in Civil Appeal No. 9329 of 2022 decided on 7.12.2022.

9. Placing reliance on aforesaid judgement, Shri Shivam Sharma, learned counsel for the respondent no. 4 argues that Hon'ble Supreme Court in similar circumstances have held that High Court could not have interfered with an order in which the employee had abandoned the service and thus merely because representation that was preferred by the petitioner was decided vide order dated 23.02.2011 that the petitioner has taken the same to be a fresh cause of action for filing of the instant petition.

10. However in the instant case a perusal of order impugned would indicate that the respondents while placing reliance on Financial Handbook volume 2 (paragraph 2 to 4) Rule 81B(2) and Rule 157 A have indicated that the petitioner has violated the same and on the basis of the same, have removed the petitioner from service. Apart from the fact that the aforesaid rule does not automatically entail removal of an employee, the other aspect of the matter is that whether service of permanent employee can be dispensed with on the ground of being absent from duty for a sufficiently long time has been considered by this Court in the case of Smt Kamla Devi vs State of U.P. and others passed in Writ Petition No. 3162 (SS) of 2010 decided on 27.7.2021 wherein after considering the 4 WRIA No. 1262 of 2011 amendment made in Rule 18 vide notification dated 12.9.1989 per which absence beyond five years has been indicated to attract the provisions of rules relating to disciplinary proceedings meaning thereby that with effect from 1989 disciplinary proceedings are a sine qua non prior to imposition of any penalty against an employee for his absence from duty beyond 5 years as such it is apparent that order of removal from service is patently vitiated in the eyes of law.

11. At the same time, the provisions of the aforesaid rules may not detain the Court considering the statement given by learned counsel for the petitioner of confining his prayer to the petitioner being given pension and other retiral dues for the period from

28.1.1971 till 15.5.1987 as the petitioner had already completed the minimum qualifying service of 10 years as required for grant of pension and other retiral dues.

12. Shri Shivam Sharma and Shri Shailendra Singh Rajawat, learned counsels for the respondents, have not been able to dispute the service rendered by the petitioner as Assistant Teacher from 28.1.1971 till 15.5.1987 (the medical leave sanctioned from

2.1.1987 till 15.5.1987) meaning thereby that the petitioner till

15.5.1987 had rendered more than 16 years of service which would thus entail the payment of retirement benefits considering that the petitioner had rendered more than 10 year of service which is a sine qua non for payment of pension and other retiral dues in case the removal order had not been passed.

13. Considering the aforesaid statement made by learned counsel for the petitioner of only restricting his claim for pension and other retiral dues from 28.1.1971 to 15.5.1987 and at the same time considering the judgement of Hon'ble Supreme Court in the case of Rajmati Singh (supra) and Smt Kamla Devi (supra) and balancing the equity and law and the undisputed rendering of service of the petitioner from 28.1.1971 to 15.5.1987 the Court is of the view that the petitioner is entitled for being paid pension and other retiral dues for the aforesaid period i.e. from 28.1.1971 till 5 WRIA No. 1262 of 2011

15.5.1987.

14. Considering the aforesaid, the writ petition is disposed of with a direction to the respondent no. 4 i.e. Basic Shiksha Adhikari, Chhatrapati Sahu Ji Maharaj Nagar to process the claim of the petitioner for payment of pension and other retiral dues for the aforesaid period i.e. 28.1.1971 till 15.5.1987.

15. Let the claim of the petitioner be processed within a period of six weeks from the date of receipt of a certified copy of this order.

16. Further, considering that the petitioner has restricted his claim for the period 28.1.1971 till 15.5.1987 it is provided that the order of removal dated 01.4.2011 a copy of which is annexure 15 to the writ petition passed by the District Basic Shiksha Adhikari shall be considered to be set aside only for the aforesaid period. September 4, 2025 J. K. Dinkar (Abdul Moin,J.) JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

1. Heard Shri Girish Kumar, learned counsel for the petitioner, Shri Ram Kumar Mishra, learned Standing Counsel for the respondent no. 1 & 3, Shri Ran Vijay Singh, learned counsel for the respondent no. 2, Shri Shivam Sharma, learned counsel for the respondent no. 4 and Shri Shailendra Singh Rajawat, learned counsel for the respondent no. 5.

2. The case has a checkered history which would be narrated below. However, at the very outset, learned counsel for the petitioner states that the petitioner was appointed on 28.1.1971 as Assistant Teacher (Basic) and continued to work till 1.1.1987 when she submitted an application for medical leave from 2.1.1987 to

15.5.1987 which was duly sanctioned but thereafter she failed to turn up and failed to join duty. However, she having completed qualifying service of more than 10 years to be eligible for pension and other retiral dues from 28.1.1971 till 15.5.1987, as such he confines his prayer to the petitioner being given pension and other retiral dues for the aforesaid period.

3. Considering the aforesaid, the Court now proceeds to consider the history of the case. 2 WRIA No. 1262 of 2011

4. The petitioner was appointed as Assistant Teacher (Basic) on

28.1.1971. On 1.1.1987 she claims to have submitted medical leave application from 2.1.1987 to 15.5.1987 which was duly sanctioned by the competent authority. Subsequent thereto she failed to join the duties. The grounds taken for not joining duties / not reporting back is the medical treatment of the petitioner.

5. Nevertheless she filed a writ petition in the year 2004 before this Court at Allahabad which according to learned counsel for the petitioner was dismissed in the year 2006 on the ground of jurisdiction. Thereafter, the petitioner filed Writ Petition No. 1710 (SS) of 2006 before this Court in the year 2006. The same was decided vide judgement and order 29.4.2010 directing respondents to consider the representation of the petitioner.

6. In pursuance thereof the representation of the petitioner was rejected vide order dated 23.02.2011, a copy of which is annexure 1 to the writ petition, by the Director, Basic Education, Government of U.P., Lucknow i.e. respondent no. 3 with a direction to the District Basic Shiksha Adhikari to take action against the petitioner in accordance with financial handbook. In pursuance thereof District Basic Shiksha Adhikari issued a notice dated 5.3.2011 requiring the petitioner to submit explanation for unauthorised absence since the year 1987, a copy of which is annexure RA-1 to the rejoinder affidavit dated 25.5.2023. In pursuance thereof the petitioner submitted a reply dated 15.3.2011. The said reply has not been found to be tenable and consequently by means of order impugned dated 1.4.2011, a copy of which is annexure 15 to the writ petition, the petitioner has been removed from service.

7. The ground urged by learned counsel for the petitioner raising a challenge to the orders impugned dated 1.4.2011 and 23.2.2011 are that as the petitioner was a regular employee working as Assistant Teacher consequently her service could not have been dispensed with in cursory manner as has been adopted by the respondents wherein without holding any regular inquiry her service has been dispensed with and thus it is prayed that the 3 WRIA No. 1262 of 2011 orders impugned be set aside with a further direction to count the entire period of service of the petitioner since 28.1.1971 till

30.6.2011 i.e. the actual date of retirement of petitioner for all benefits including arrears of pay and any other retiral dues.

8. The same is opposed by learned counsel for the respondents that even if the respondents have not adopted the disciplinary proceedings against the petitioner yet the conduct of the petitioner wherein she failed to report back after end of her medical leave from 15.5.1987 and has only approached this Court at Allahabad in the year 2004 by filing a writ petition i.e. after a period of almost 17 years would take her case to one of abandonment of service as has been considered by Hon'ble Supreme Court in the case of The State of Uttar Pradesh and others vs Rajmati Singh passed in Civil Appeal No. 9329 of 2022 decided on 7.12.2022.

9. Placing reliance on aforesaid judgement, Shri Shivam Sharma, learned counsel for the respondent no. 4 argues that Hon'ble Supreme Court in similar circumstances have held that High Court could not have interfered with an order in which the employee had abandoned the service and thus merely because representation that was preferred by the petitioner was decided vide order dated 23.02.2011 that the petitioner has taken the same to be a fresh cause of action for filing of the instant petition.

10. However in the instant case a perusal of order impugned would indicate that the respondents while placing reliance on Financial Handbook volume 2 (paragraph 2 to 4) Rule 81B(2) and Rule 157 A have indicated that the petitioner has violated the same and on the basis of the same, have removed the petitioner from service. Apart from the fact that the aforesaid rule does not automatically entail removal of an employee, the other aspect of the matter is that whether service of permanent employee can be dispensed with on the ground of being absent from duty for a sufficiently long time has been considered by this Court in the case of Smt Kamla Devi vs State of U.P. and others passed in Writ Petition No. 3162 (SS) of 2010 decided on 27.7.2021 wherein after considering the 4 WRIA No. 1262 of 2011 amendment made in Rule 18 vide notification dated 12.9.1989 per which absence beyond five years has been indicated to attract the provisions of rules relating to disciplinary proceedings meaning thereby that with effect from 1989 disciplinary proceedings are a sine qua non prior to imposition of any penalty against an employee for his absence from duty beyond 5 years as such it is apparent that order of removal from service is patently vitiated in the eyes of law.

11. At the same time, the provisions of the aforesaid rules may not detain the Court considering the statement given by learned counsel for the petitioner of confining his prayer to the petitioner being given pension and other retiral dues for the period from

28.1.1971 till 15.5.1987 as the petitioner had already completed the minimum qualifying service of 10 years as required for grant of pension and other retiral dues.

12. Shri Shivam Sharma and Shri Shailendra Singh Rajawat, learned counsels for the respondents, have not been able to dispute the service rendered by the petitioner as Assistant Teacher from 28.1.1971 till 15.5.1987 (the medical leave sanctioned from

2.1.1987 till 15.5.1987) meaning thereby that the petitioner till

15.5.1987 had rendered more than 16 years of service which would thus entail the payment of retirement benefits considering that the petitioner had rendered more than 10 year of service which is a sine qua non for payment of pension and other retiral dues in case the removal order had not been passed.

13. Considering the aforesaid statement made by learned counsel for the petitioner of only restricting his claim for pension and other retiral dues from 28.1.1971 to 15.5.1987 and at the same time considering the judgement of Hon'ble Supreme Court in the case of Rajmati Singh (supra) and Smt Kamla Devi (supra) and balancing the equity and law and the undisputed rendering of service of the petitioner from 28.1.1971 to 15.5.1987 the Court is of the view that the petitioner is entitled for being paid pension and other retiral dues for the aforesaid period i.e. from 28.1.1971 till 5 WRIA No. 1262 of 2011

15.5.1987.

14. Considering the aforesaid, the writ petition is disposed of with a direction to the respondent no. 4 i.e. Basic Shiksha Adhikari, Chhatrapati Sahu Ji Maharaj Nagar to process the claim of the petitioner for payment of pension and other retiral dues for the aforesaid period i.e. 28.1.1971 till 15.5.1987.

15. Let the claim of the petitioner be processed within a period of six weeks from the date of receipt of a certified copy of this order.

16. Further, considering that the petitioner has restricted his claim for the period 28.1.1971 till 15.5.1987 it is provided that the order of removal dated 01.4.2011 a copy of which is annexure 15 to the writ petition passed by the District Basic Shiksha Adhikari shall be considered to be set aside only for the aforesaid period. September 4, 2025 J. K. Dinkar (Abdul Moin,J.) JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench