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2018 DIGILAW 2208 (ALL)

Vijay Shyam Dwivedi v. State Of U. P.

2018-10-22

SAUMITRA DAYAL SINGH

body2018
JUDGMENT : SAUMITRA DAYAL SINGH, J. 1. Heard Sri R.K. Ojha, learned Senior Advocate assisted by Sri Ramesh Kumar Saxena, learned counsel for the petitioner and learned Standing Counsel for the State-respondents. 2. The solitary reason on which claim of regularisation appears to have been rejected is that the petitioner had earlier filed a writ petition being Writ - A No. 42827 of 1997 wherein by order dated 15.10.1998, a direction had been issued for payment of salary to the petitioner during the pendency of the writ petition. 3. While rejecting the claim for regularisation, the Regularisation Committee has adverted to Section 33-G(8) of the U.P. Act No. 5 of 1982. For ready reference Section 33-G(8) reads as below: "Adhoc teachers, who have not been appointed either in accordance with the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981 or in accordance with Section 18 of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 and are otherwise getting salary only on the basis of Interim/Final orders of the Court shall not be entitled for regularisation." 4. Learned Senior Counsel for the petitioner submits that the reasoning adopted by the Regularisation Committee is patently illegal inasmuch as the provisions of Section 33-G(8) of the U.P. Act No. 5 of 1982 exist only to provide that no regularisation be made during the pendency of the writ petition wherein the claim made itself be pending adjudication by this Court. 5. In the facts of the present case, it has been submitted that undisputedly Writ Petition No. 42827 of 1997 stood disposed of by order dated 20.09.2017 wherein specific direction had been issued by this Court to the Joint Director of Education to consider the claim for regularisation. 6. Learned Senior Counsel for the petitioner would therefore submit that the reasoning given in the order is in the teeth of the direction issued by this Court and the same cannot be sustained. 7. Learned Addl. Chief Standing Counsel opposed the writ petition and has submitted that the petitioner having been paid salary under the interim and later final order passed by this Court, he is not entitled to the relief of regularisation in view of the clear language of Section 33-G(8). 8. 7. Learned Addl. Chief Standing Counsel opposed the writ petition and has submitted that the petitioner having been paid salary under the interim and later final order passed by this Court, he is not entitled to the relief of regularisation in view of the clear language of Section 33-G(8). 8. By order dated 20.09.2017, this Court had disposed of the Writ Petition No. 42827 of 1997 filed by the petitioner on the following terms: "Heard Sri R.K. Ojha, learned senior counsel for the petitioner and the learned standing counsel for the State respondents. Bearing in mind the nature of the order which this Court proposes to pass, the writ petition is taken up for final disposal even though none has appeared for the second respondent. The petitioner is stated have been appointed on an ad hoc basis in the respondent institution. Since approval was not accorded to his appointment by the District Inspector of Schools, he was constrained to institute the present writ petition. In this petition by an order dated 15 October 1998, an interim order was made providing that the petitioner would be paid salary till further orders. Shri Ojha on instructions states that pursuant to the aforesaid order, the petitioner has continued to work and has also drawn salary. In view thereof his submission was that the only issue which now remains for consideration is the entitlement of the petitioner for regularization under the provisions of Section 33-G of the 1982 Act. Learned standing counsel states that subject to all contentions on merits being left open, in case the petitioner approaches the concerned Joint Director of Education with a claim for regularization, the same shall be placed before the concerned committee for appropriate consideration. Accordingly and in light of the statements made above and without going into the merits or otherwise of the claim of the petitioner, this petition shall stand disposed of with the consent of parties with the following directions. The petitioner shall within a period of two weeks from today present a claim before the concerned Joint Director of Education alongwith all other material in support of his case for regularization under the provisions of the 1982 Act. In case such a representation is made, the concerned Joint Director of Education shall place the same for consideration of the concerned committee. In case such a representation is made, the concerned Joint Director of Education shall place the same for consideration of the concerned committee. The committee shall proceed to consider the claim of the petitioner and pass appropriate orders thereon within a period of three months from the date of submission of the claim. All contentions on merits of respective parties are left open. Till such time as a final decision is taken and subject to the decision that the competent authority may take on the claim of the petitioner for regularization, the petitioner shall continue to be paid salary regularly." 9. It thus appear that this Court was cognizant that the petitioner had worked for long period of time and that his claim for regularisation was required to be considered on merits in terms of Section 33-G(8) of the U.P. Act No. 5 of 1982. Accordingly, specific direction was issued to the Joint Director of Education to consider that. 10. In view of the specific direction contained in the order dated 20.09.2017 passed in Writ Petition No. 42827 of 1997, it is doubtful if it remained open to the Joint Director of Education and/or the Regularisation Committee to reject the claim made by the petitioner owing to earlier litigation. 11. Even otherwise a plain reading of Section 33-G (8) of the U.P. Act No.5 of 1982 makes it clear that the disqualification for regularization contained in that provision does not arise on account of the fact that an ad hoc teacher may have filed a writ petition or because he may have received any salary payment under an interim or final order passed by any Court. The disability under that provision arises if it is found that such a person had not been appointed either in accordance with the U.P. Secondary Education Service Commission (Renewal of Difficulties) Order, 1981 or in accordance with Section 18 of the U.P. Secondary Education Service Selection Board Act, 1982. If a person had been appointed in violation of those provisions of law he would remain dis-entitled to regularization despite the fact that any interim or final order may have been passed in his favour by any Court for payment of his salary for any period. If a person had been appointed in violation of those provisions of law he would remain dis-entitled to regularization despite the fact that any interim or final order may have been passed in his favour by any Court for payment of his salary for any period. Thus, the disability arises if the appointment is contrary to law and that disability does not get cured by any interim or final order that may have been passed in some proceedings with respect to payment of salary. 12. Thus the provision of Section 33-G(8) has to be read in entirety and the second part of that sub-Section cannot be read in isolation. The second part of the said sub-Section that referred to the interim or final order to the Court is only by way of explanation to the first part. It only brings out the real legislative intent being any ad hoc teacher whose initial appointment may not be accordance with law, would remain disentitled to regularization irrespective of any other fact including payment of salary under any order passed by any Court. 13. Read in that manner the provisions of Section 33-G (8) cannot be invoked independently by reading the second part of that sub-Section in isolation. In fact the governing provisions is contained in the first part of that sub-Section and the second part is only an explanation or clarification that may come into play only if the first part of that sub-section is attracted, and not otherwise. 14. In view of the above, no useful purpose would be served in keeping the present writ petition pending any further or calling for a counter affidavit. 15. Since no other reason has been given by the Regularisation Committee in the impugned order dated 13.08.2018, the same is set aside and the matter is remitted to the Regularisation Committee to pass a fresh order strictly in accordance with law. 16. It is also expected that a fresh decision shall be made as expeditiously as possible, preferably within a period of two months from the date of production of a certified copy of this order. 17. For a period of two months from today or till fresh decision is made, which ever is earlier, the protection granted by order dated 20.09.2017 shall continue. 18. With the aforesaid observation, the present writ petition is disposed of.