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2009 DIGILAW 2942 (ALL)

RAJENDRA PATHAK v. STATE OF U. P.

2009-08-25

S.U.KHAN

body2009
JUDGMENT Hon’ble S.U. Khan, J.—Heard Sri R.S. Khushwaha, learned counsel for Committee of Management and Sri U.N. Sharma, learned senior counsel assisted by Sri C.S. Rai, learned counsel for Rajendra Pathak, headmaster of the school, Panchsheel Laghu Madhyamik Vidhyalay Rookundipur, Post Nonahara, District Ghazipur. 2. Second writ petition was finally disposed of by me at the admission stage on 4.3.2009 by the following order : “Grievance of the petitioner Committee of Management which is running Junior High School is that respondent No. 4, Sri Rajendra Pathak, head master of the School has become completely blind and petitioner is constantly approaching the District Magistrate and Basic Shiksha Adhikari in this regard but they are not getting the eyes of respondent No. 4 examined by medical board. If a Principal has become incapable of performing his duties then he may be discharged from service. Petitioner is at liberty to initiate proceeding against respondent No. 4 in accordance with Rules 15 and 16 of U.P. Recognised Basic Schools (Junior High School) (Recruitment and Condition of Service of Teachers) Rules, 1978. Writ petition is disposed of.” 3. Thereafter on 8.7.2009, recall application was filed by Rajendra Pathak, headmaster, respondent No. 4 in the said writ petition. On the said recall application, I passed the following order on 14.7.2009 : “This dispute is whether the headmaster concerned is blind or not. I only passed an order that disciplinary proceedings against him may be initiated on the ground of his incapacity to act as headmaster. Said order was passed by me on 4.3.2009 while disposing of finally writ petition No. 10596 of 2009. The headmaster has filed this application for recall of the said order. The best course to decide as to whether the headmaster Sri Rajendra Pathak is capable of performing the duties of headmaster or not is to call him in Court and ask him to read few lines. If he is able to read then of course absolutely no action against him will be warranted on the ground of his alleged blindness. However, if he cannot read then he does not deserve to continue as headmaster. Continuance of such person is against the interest of students. Interest of students is paramount and will have to be given preference over the interest of management as well the interest of headmaster. However, if he cannot read then he does not deserve to continue as headmaster. Continuance of such person is against the interest of students. Interest of students is paramount and will have to be given preference over the interest of management as well the interest of headmaster. Learned counsel states that another writ petition in that regard is also pending which is numbered as writ petition No. 20874 of 2007. The said writ petition deserves to be heard along with this recall application subject to the approval of Hon’ble the Chief Justice. Accordingly, place the file before Hon’ble the Chief Justice. If other writ petition is also nominated to me then both the matters must be listed at the top of the list before me on 4.8.2009 and on the said date Sri Rajendra Pathak shall remain present in Court. This order has been passed in the presence of Sri K.S. Kushwaha, learned counsel who was appearing for petitioner management in this writ petition.” 4. Thereafter the aforesaid writ petition of 2007 filed by the Headmaster was nominated to me by order dated 24.7.2009 passed by Hon’ble Senior Judge on the back of Page-2 of recall application. Through the aforesaid writ petition of 2007, order of District B.S.A. Ghazipur dated 6.4.2007 has been challenged through which single operation of the accounts of the school was directed and it was further directed that salary shall be paid to the headmaster, Rajendra Pathak, who was alleged to be completely blind only after inquiry in accordance with the rules. 5. Learned counsel for the Committee of Management stated that disciplinary proceedings were completed against headmaster and matter of removal of the headmaster is at final stage. 6. It has also been admitted that since January-February, 2009, no salary is being paid to the headmaster. 7. In the recall application filed in the writ petition of 2009, I passed the following order on 12.8.2009 : “Supplementary affidavit filed today is taken in record. List on 20.8.2009 peremptorily at the top of the list. On the next date, the Head Master Sri Rajendra Pathak shall be present in the Court as directed earlier so that the Court may ascertain as to whether he can read or not due to his weak eye-sight.” 8. List on 20.8.2009 peremptorily at the top of the list. On the next date, the Head Master Sri Rajendra Pathak shall be present in the Court as directed earlier so that the Court may ascertain as to whether he can read or not due to his weak eye-sight.” 8. In the supplementary affidavit dated 11.8.2009 filed on 12.8.2009 by Lalji Shukla, Pairokar of Headmaster Rajendra Pathak, it is stated in Para-3 that on 10.7.2009, Sri Pathak fell from the bed, received injuries on his head and became unable to read and thereafter, he sent application to District B.S.A., Ghazipur through registered post on 13.7.2009 seeking voluntary retirement. On 20.8.2009 when the case was taken up, Sri U.N. Sharma, learned senior counsel appearing for Sri Rajendra Pathak stated that voluntary retirement might be allowed to the headmaster, Sri Pathak and requisite benefits might be directed to be paid to him. Learned counsel was directed to show the provision under which it was permissible. Today, learned counsel has stated that voluntary retirement is permissible under Rule 17(ii) of U.P. Contributory Provident Fund Insurance Pension Rules and has cited Education Manual published by Hind Publishing House, Allahabad, 20th Edition of 2008 conaining the said Rules on Page 550. In the said book year in which Rules were passed has not been mentioned. Rule 17(ii) states that an employee shall be eligible for pension on voluntary retirement after completing 25 years of qualifying service. (According to sub-rule (iii) of the said Rule, employee shall be eligible for pension on retirement before age of superannuation under a medical certificate of permanent incapacity for further service). As the Headmaster Sri Pathak has applied for voluntary retirement under Rule 17(ii) through application stated to have been despatched through registered post on 13.7.2009, hence he shall stand retired voluntarily with effect from today. 9. It is quite clear that he was not discharging the duties due to his blindness since long, hence salary from January-February, 2009 till date shall not be paid to him. District B.S.A., Ghazipur is directed to pass suitable orders in respect of grant of pension to Sri Rajendra Pathak, the headmaster. The District B.S.A. Ghazipur shall decide as to whether aforesaid Pension Rules apply to the Headmaster or not. District B.S.A., Ghazipur is directed to pass suitable orders in respect of grant of pension to Sri Rajendra Pathak, the headmaster. The District B.S.A. Ghazipur shall decide as to whether aforesaid Pension Rules apply to the Headmaster or not. If the said Rules do not apply, then pension and other benefits as permissible under the relevant Rules to headmasters of recognized Junior High Schools taking voluntary retirement shall be made available to Sri Pathak. Order shall be passed by District B.S.A. positively by 31.10.2009. If the application dated 13.7.2009 was not received by District B.S.A. or is not available in his office, order shall be passed on the basis of this judgment. If requisite order is to be passed by some other authority, then District B.S.A. shall send a copy of this judgment to that authority. 10. Disciplinary proceedings against Sri Pathak shall immediately be dropped. 11. Whatever salary has been paid to Sri Pathak shall not be refundable by him and whatever salary till date has not been paid to him shall not be payable. However, Sri Pathak shall be treated to be in continuous service till date without any break for the purpose of pension and other retiral benefits. 12. Accordingly, writ petition of 2007 and recall application in the writ petition of 2009 are disposed of. 13. Office is directed to supply a copy of this judgment to Sri N.P. Pandey, learned Standing Counsel, free of cost by 28.8.2009 for immediate communication to District B.S.A. Ghazipur. ————