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2016 DIGILAW 1134 (ALL)

State of U. P. v. Saroj Tiwari

2016-03-30

V.K.SHUKLA, VIVEK KUMAR BIRLA

body2016
JUDGMENT Ref: - Delay Condonation Application For the reasons stated in the affidavit filed in support of delay condonation application constitutes sufficient cause to condone the delay. Consequently, delay is condoned. The present Special appeal is to be treated to have been filed well within time. Ref: - Special Appeal State of U.P. through Principal Secretary, Department of Secondary Education Government of Uttar Pradesh Civil Secretariat Lucknow alongwith three others are before this Court questioning the validity of the judgment and order dated 01.10.2015 passed in Civil Misc. Writ Petition No. 56164 of 2015 (Smt. Saroj Tiwari Vs. State of U.P. and others) wherein learned Single Judge has proceeded to allow the writ petition with the direction to permit the petitioner to continue in service till 31.03.2016. From the side of appellant-respondents, Sri Rama Nand Pandey, learned Standing Counsel submitted that learned Single Judge in the present case has proceeded to allow the writ petition in question on the premises that claim of the petitioner, Smt. Saroj Tiwari was covered by the Division Bench judgement of this Court in the case of State of U.P. through the Secretary, Basic Education, Lucknow and others Vs. Ramesh Chandra Tiwari and others [Special Appeal (Defective) No. 360 of 2015 (LB)] whereas fact of the matter is that the said judgment is not at all applicable or attracted in the case of petitioner for extending session benefit as has been extended, in view of this, present special appeal deserves to be allowed. Countering the said submission, learned counsel appearing for petitioner has contended that rightful view has been taken in the matter as Smt. Saroj Tiwari is Assistant Teacher in LT grade, as such no interference be made. After respective arguments have been advanced, factual situation that is so emerging that Smt. Saroj Tiwari has been performing and discharging duties at Manovigyanshala, U.P. Allahabad and notices have been given to her on 30.06.2015, informing and intimating her that she would attain her age of superannuation on 30.06.2015. Petitioner-opposite party came to this Court by mentioning that she is entitled for session benefit and the learned Single Judge has proceeded to allow the writ petition on presentation of the writ petition with positive direction to permit the petitioner-respondent to continue in service till 31.03.2016. Petitioner-opposite party came to this Court by mentioning that she is entitled for session benefit and the learned Single Judge has proceeded to allow the writ petition on presentation of the writ petition with positive direction to permit the petitioner-respondent to continue in service till 31.03.2016. In the case Special Appeal (Defective) No. 360 of 2015 (LB) [State of U.P.through the Secretary, Basic Education, Lucknow and others Vs. Ramesh Chandra Tiwari and others], dispute in question has emanated in reference to the institution run and managed under the provision as contained in U.P. Basic Education Act, 1972 wherein service condition of teacher was governed by the Rules known as U.P. Basic Education Teachers Service Rules, 1981, keeping in view Rule 29 which deals with the age of superannuation. The issue was decided by mentioning that Rule 29 postulates that a teacher who retires during an academic session would continue to work till the end of the academic session and since the academic session was between 1st July to 30 June, a teacher who attained the age of superannuation within that period would continue until the following 30 June and only such period of service may be deemed to be extended period of employment. Said decision in question is in reference of U.P. Basic Education Teachers Service Rules, 1981. Accepted position in the present case is that as far as petitioner is concerned, her claim in question is not governed by aforesaid rules and once service condition of the petitioner was not at all governed by aforesaid Rules of 1981 then opportunity of hearing ought to have been afforded to the State to file counter affidavit so that State could have demonstrated that the aforesaid judgment being relied upon was not at all applicable or attracted in the facts of the present case. In view of this, placing of reliance on the judgement, which is based on altogether different set of Rules, cannot be approved of by us and the claim of petitioner sought to have been considered in the light of the Rules controlling the service condition of the petitioner as well as relevant Government Orders holding the field. In respect of staff of Central Paedological Institute, considering the issue of age of superannuation vis-a-vis session benefit, Full Bench of our Court, in the case of Smt. Sumitra Dhulia Vs. Director of Education & others,[Civil Misc. In respect of staff of Central Paedological Institute, considering the issue of age of superannuation vis-a-vis session benefit, Full Bench of our Court, in the case of Smt. Sumitra Dhulia Vs. Director of Education & others,[Civil Misc. Writ Petition No. 11111 of 1996] decided on 12.11.2010 has taken the view that Government Order dated 21.03.1984 granting extension of service to Teacher/Head Masters and Principals of Government Colleges and Government Degree Colleges, till the end of academic session i.e. 30th June of the year in which such Teacher, Head Master or Principal retire, is not applicable to the employees including Professors working in the Central Paedological Institute. In view of this, judgment and order dated 01.10.2015 passed in Civil Misc. Writ Petition No. 56164 of 2015 (Smt. Saroj Tiwari Vs. State of U.P. and others) is hereby quashed and set aside. Matter is remitted back to be decided afresh after exchange of pleading inter se parties. In the said direction, appellant-respondent is accorded one month time to file counter affidavit. Rejoinder affidavit may be filed within next two weeks. List this matter after six weeks' before appropriate Bench. With the aforesaid observations and direction present special appeal is allowed.