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2013 DIGILAW 326 (ALL)

HANUMAN PRASAD SINGH v. STATE OF U. P.

2013-01-29

SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Hon’ble Surendra Vikram Singh Rathore, J.—Heard learned counsel for the petitioner and learned Chief Standing Counsel for the opposite parties. 2. Since both these writ petitions are interrelated, therefore, they were heard together and are being disposed of by a common judgment. 3. The petitioner Hanuman Prasad Singh was appointed on the post of untrained Assistant Teacher by the Education Superintendent, Sultanpur vide order dated 5.12.1965 and was posted in Primary School Ballua, Development Block Akhand Nagar District Sultanpur. In pursuance of the aforementioned appointment letter he joined his duty as such on 6.12.1965 and since then he was continuously working and discharging his duties on the aforesaid post. During continuance of his service on 27.7.1974 he was placed under suspension but no enquiry was conducted for long time, therefore, he challenged the said suspension order in Writ Petition No. 1849 (S/S) of 1998 and this Court by an interim order dated 2.5.1998 directed as under : “It is therefore, directed that the operation of the impugned order of suspension dated 27.7.1974, shall remain stayed until furthers. Respondents are further directed to pay salary to the petitioner from the date he reports for duty. It will, however, be open for the respondents, either to take or not to take work from the petitioner.” 4. In compliance of the said interim order of this Court the petitioner was reinstated in service w.e.f. 5.5.1998. Thereafter the petitioner continued in service till he attained the age of superannuation but no enquiry was ever conducted against him nor he was inflicted any punishment, therefore, the writ petition No. 1849 (S/S) of 1998 has rendered infructuous and accordingly the same is liable to be dismissed as infructuous. 5. After his reinstatement the petitioner moved several representations for his promotion as trained teacher. When no action was taken by the concerned authorities then petitioner preferred a Writ Petition No. 1174 (S/S) of 2001 which was disposed of vide order dated 10.12.2003 with direction to the opposite parties to dispose of the representation of the petitioner dated 27.01.2001 in the light of the Government Order dated 4.12.1982. In the year 1994 a Government Order was issued that untrained teachers who have completed 10 years of service shall be given exemption from the requirement of training. On 19.3.2004 the representation of the petitioner was rejected. In the year 1994 a Government Order was issued that untrained teachers who have completed 10 years of service shall be given exemption from the requirement of training. On 19.3.2004 the representation of the petitioner was rejected. Feeling aggrieved thereby the Writ Petition No. 4513 (S/S) of 2004 has been filed. 6. It is submitted on behalf of learned counsel for the petitioner that while disposing of the representation of the petitioner the concerned authorities although accepted the claim of the petitioner but declined the benefit solely on the ground that the Writ Petition No. 1849 (S/S) of 1998 is pending in the High Court. Apart from it he has also mentioned that the period of his suspension cannot be included in the service period. 7. It is submitted that when this Court by interim order stayed the operation of the suspension order then the suspension order became non-existent. Apart from it mere suspension from service cannot be said to be discontinuance in service unless and until in the departmental enquiry the employee is held guilty and punished. 8. The State in the instant writ petition is a formal party. None appeared on behalf of the B.S.A. to argue the case. A perusal of the impugned order shows that the B.S.A., Sultanpur has admitted that even after a long time service of 32 years the petitioner is still getting the scale of untrained teacher while as per the Government Order dated 4.12.1982 he became entitled on 30.6.1978 for getting the scale of trained teacher, after completing 10 years of services. It was further observed in the last paragraph of the impugned order that in compliance of the interim order of this Court the petitioner was directed to join w.e.f. 5.5.1998 and he was being paid salary accordingly and the services of the petitioner cannot be treated to be continuous as the writ petition is still pending. Apart from it, it was also observed that the Government Order dated 4.12.1982 is applicable to the untrained teachers working in recognised primary and Junior High School and it is not applicable to the untrained teachers working in recognised primary schools under the control of Basic Education Board. Apart from it, it was also observed that the Government Order dated 4.12.1982 is applicable to the untrained teachers working in recognised primary and Junior High School and it is not applicable to the untrained teachers working in recognised primary schools under the control of Basic Education Board. Perusal of the Government Order dated 4.12.1982 shows that it is with regard to the teachers of the recognized junior High Schools and primary schools but admittedly there is another Government Order dated 21.10.1994 i.e. Government Order No. 1807/15-(13)-14-1411(8)/77 wherein the same benefit has also been extended to the untrained teachers of Junior High School and Primary schools under the Control of Basic Education Board. According to this Government Order the petitioner became entitled to the exemption from training. Since there is nothing on record to infer that any enquiry was conducted against the petitioner or any punishment was inflicted on him and in the absence of any such material on the above point, the impugned order whereby the benefit of the trained teacher has been declined to the petitioner is not sustainable under law and the petitioner became entitled for the benefit of the Government Order dated 21.10.1994 as he was working in a primary school working under the control of Basic Education Board. Denial of the opposite parties to extend the benefit of the said Government Order dated 21.10.1994 to the petitioner on the ground of mere pendency of the writ petition cannot be said to be legal and valid when this Court vide an interim order has stayed the operation of the suspension order. Therefore, this writ petition deserves to be allowed. 9. Accordingly Writ Petition No. 1849 (SS) of 1998 is dismissed as infructuous and Writ Petition No. 4513 (SS) of 2004 is allowed. The impugned order dated 19.3.2004 is hereby set aside, The B.S.A., Sultanpur is hereby directed to take a decision regarding the grant of pay scale of the trained teacher to the petitioner in the light of the G.O. dated 21.10.1994. The petitioner shall also be entitled for the arrears of salary accordingly. Since the petitioner was suspended in the year 1974 and had not worked for a long period of 24 years and suspension was challenged by him after twenty four years, therefore, he shall not be entitled for the salary of the aforesaid period on the principle of ‘no work no pay’. Since the petitioner was suspended in the year 1974 and had not worked for a long period of 24 years and suspension was challenged by him after twenty four years, therefore, he shall not be entitled for the salary of the aforesaid period on the principle of ‘no work no pay’. However, the subsistence allowance which has been paid during the period of his suspension shall not be recovered from him. The opposite parties, specifically the Basic Shiksha Adhikari, Sultanpur, shall pass orders in view of the observations made by this Court in this judgment, within a period of two months from the date a certified copy of this order is produced before him and shall also ensure the payment of arrears of salary and other consequential benefits to the petitioner within a period of two months. ——————