Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 1454 (ALL)

Akhilesh Kumar Upadhyay v. State Of U. P.

2020-12-08

J.J.MUNIR

body2020
JUDGMENT : 1. This writ petition is directed against an order dated 05.07.2017 passed by the Basic Shiksha Adhikari, Jaunpur, by which the Basic Shiksha Adhikari has refused to extend benefit of the Government Order dated 01.02.2000 to the petitioner, entitling him to salary of a trained teacher, upon completion of five years service. 2. Parties have exchanged affidavits. 3. Admit. 4. Heard forthwith. 5. Heard Mr. Dharmendra Kumar Dwivedi, learned Counsel for the petitioner, Mr. Mrigraj Singh, learned Counsel appearing on behalf of respondent nos.3 and 4 and Mr. Sriprakash Singh, learned Standing Counsel, appearing for respondent nos.1 and 2. 6. The petitioner’s father was a Headmaster, posted at Prathmik Vidyalaya, Bhikharipur, Block Sujanganj, District Jaunpur. He died in harness on 05.09.1974. The petitioner applied for compassionate appointment, under the Dying-in-Harness Rules applicable. It is common ground between parties that the petitioner was appointed as Assistant Teacher (Primary), under the Dying-in-Harness Rules vide order dated 29.10.1991. He was posted to Prathmik Vidyalaya, Kailwal, Block Maharajganj, District Jaunpur. The petitioner joined on 01.11.1991. 7. It is asserted that on the basis of some false complaint that the petitioner had secured his appointment, relying on false documents, the petitioner’s services were terminated by the Basic Shiksha Adhikari vide order dated 18.02.1992. This order of termination was challenged by the petitioner before this Court by means of Civil Misc. Writ Petition no.6619 of 1992. The orders passed in the aforesaid writ petition have not been placed before the Court, but what appears from the pleadings of parties is that the said writ petition was disposed of by an order dated 21.04.1992, directing the Basic Shiksha Adhikari to decide the petitioner’s claim, asking for reinstatement with continuity of service. The Basic Shiksha Adhikari by his order dated 25.06.1992 rejected the petitioner’s claim. This order was challenged by the petitioner by instituting Writ Petition (S/S) no.1241 of 1999 before the Lucknow Bench of this Court. Once again, the petitioner was relegated to the Basic Shiksha Adhikari for a decision of the matter afresh. It must be remarked that both these orders are not before this Court and reference to the outcome of those proceedings is based on the averments made in the writ petition that have not been disputed by the respondents. Once again, the petitioner was relegated to the Basic Shiksha Adhikari for a decision of the matter afresh. It must be remarked that both these orders are not before this Court and reference to the outcome of those proceedings is based on the averments made in the writ petition that have not been disputed by the respondents. It appears that the matter somehow landed in the hands of the Director of Education, who also rejected the petitioner’s claim by an order dated 07.01.2000. 8. The petitioner, finding that the respondent Authorities would not consider the matter in the right perspective, approached the State Administrative Tribunal, questioning all the decisions taken by the respondent Authorities, regarding termination of his services. He instituted Claim Petition no.1183 of 2000. The claim petition came up for hearing before the Tribunal on 05.11.2009 and was partly allowed. The orders dated 18.01.1992, 03.06.1992, 25.06.1992 and 07.01.1992 were set aside. The petitioner was ordered to be reinstated in service forthwith with liberty to the respondents to proceed with the inquiry, placing the petitioner under suspension and continuing the inquiry from the stage of furnishing him with a charge sheet. It was further ordered that the petitioner would be entitled to consequential service benefits, except back-wages, on a final outcome of the inquiry. The respondents were directed to conclude the inquiry within a period of three months. A perusal of the Tribunal’s judgment shows that it proceeded on the reasoning that the order terminating the petitioner’s services being stigmatic, disciplinary proceedings ought to have been held. It is in the context of this reasoning that the Tribunal made the orders, indicated hereinabove. 9. In compliance with the Tribunal’s order, the Basic Shiksha Adhikari reinstated the petitioner in service vide order dated 29.06.2010. While doing so, the Basic Shiksha Adhikari clearly recorded in his order of reinstatement that the allegations on the basis of which the petitioner’s services were earlier terminated, were absolutely untenable. It was indicated in the order of reinstatement that the precise allegations about the false certification of his candidature by the petitioner was on the basis that the petitioner’s deceased father, Hridaya Narain Upadhyay died prior to 25.08.1972 and his Provident Fund amounting to Rs.1225/-was paid to his widow. 10. It was indicated in the order of reinstatement that the precise allegations about the false certification of his candidature by the petitioner was on the basis that the petitioner’s deceased father, Hridaya Narain Upadhyay died prior to 25.08.1972 and his Provident Fund amounting to Rs.1225/-was paid to his widow. 10. It is further recorded in the reinstatement order that the payment of Provident Fund, that was made to the wife of the late Hridaya Narain Upadhyay, was regarding a different man other than the petitioner’s father. His father was functioning until the month of May, 1974, when he had to proceed on medical leave. He died on 05.09.1974. The Basic Shiksha Adhikari has recorded the further fact that the petitioner had produced before him a copy of the family register, which shows that the date of death of his father, the late Hridaya Narain Upadhyay was 05.09.1974. 11. The Basic Shiksha Adhikari, on the basis of these facts, has recorded a categorical finding that it appears that there were two teachers in two different primary schools by the name of Hridaya Narain Upadhyay, who were different men. Recording the aforesaid finding, the Basic Shiksha Adhikari reinstated the petitioner. 12. It must be remarked here that it is but obvious that the part of the Tribunal’s judgment that permits the Basic Shiksha Adhikari to issue a charge sheet to the petitioner and resume disciplinary proceedings against him from that stage and other incidental directions, loose all significance. The petitioner’s reinstatement in terms of the Tribunal’s order is in absolute terms with no further proceedings contemplated. This is also explicit from the terms of the reinstatement order dated 29.06.2010 passed by the Basic Shiksha Adhikari. 13. Now, the petitioner resumed his duties on 02.07.2010 and is discharging his duties ever since. On 21.01.2010, the Basic Shiksha Adhikari issued directions that the petitioner be paid salary as an untrained teacher. The petitioner points out that in accordance with the Government Order dated 15.05.1997, all teachers appointed to Primary Schools or Junior High Schools, under the control of the Basic Shiksha Parishad, who had been appointed under the Dying-in-Harness Rules as untrained teachers and had completed five years service on 30.04.1997 or had two years service left to superannuate, were exempted from training. Subsequently, by a Government Order dated 06.08.1999, it was provided that the teachers of the aforesaid category (untrained teachers appointed under the Dying-in-Harness Rules), who had completed five years continuous service as on 31.12.1999, or who had two years left to retire, were granted exemption from training. Thus, exemption from training was provided twice. A Government Order dated 01.02.2000 came to be issued providing that the teachers appointed under Dying-in-Harness Rules, after they had put in five years service, be made to undergo training. It further provides that in case due to any unforeseen eventuality training is not possible, upon completion of five years continuous service, an assistant teacher of this class be given benefit of a trained teacher’s pay scale, and, thereafter, arrangement be made to ensure training. 14. It is also pointed out by the learned Counsel for the petitioner that upon enforcement of the Government Order dated 01.02.2000, untrained teachers, who were appointed under the Dying-in-Harness Rules and had completed five years continuous service, have been extended the benefit of a trained teacher’s pay scale. He has drawn the Court’s attention to a number of orders relating to such teachers, that have been annexed compendiously as Annexure no.8 to the writ petition. Learned Counsel has also invited the Court’s attention to the fact that there were 215 teachers in the entire district of Jaunpur, who were untrained and appointed under the Dying-in-Harness Rules. The petitioner was one of them. He has pointed out that by means of an order dated 18.04.2015, all these teachers have been asked to be relieved from their duties w.e.f. 27.04.2015 in order to undergo training at the DIET, Jaunpur w.e.f. 28.04.2015. The petitioner too was relieved and sent to training. It is stated that the petitioner has successfully completed his training, like other candidates. The petitioner, however, has not been granted a trained teacher’s pay scale. He addressed various representations in the matter, including the representations dated 08.07.2015 and 03.02.2016, both to the Basic Shiksha Adhikari, but to no avail. 15. When those efforts went in vain, he approached this Court by means of Writ – A No.27008 of 2016. The petitioner, however, has not been granted a trained teacher’s pay scale. He addressed various representations in the matter, including the representations dated 08.07.2015 and 03.02.2016, both to the Basic Shiksha Adhikari, but to no avail. 15. When those efforts went in vain, he approached this Court by means of Writ – A No.27008 of 2016. This Court disposed of the said petition, directing the Basic Shiksha Adhikari to consider the grievance of the petitioner and pass appropriate orders in accordance with law, preferably within four months of the date of receipt of a copy of the order dated 04.07.2016 passed by the Court in the writ petition, aforesaid. It is in consequence of the aforesaid directions that the impugned order dated 05.07.2017 has come to be made by the Basic Shiksha Adhikari, Jaunpur. The Basic Shiksha Adhikari has rejected the petitioner’s representation on ground that the petitioner’s services are to be reckoned with effect from 02.07.2010, when he was reinstated in service, in compliance with the order dated 29.06.2010. It has been urged that the petitioner’s case is not one where he is qualified to receive benefit of the Government order dated 01.02.2000, or a further Government Order dated 24.04.2002. 16. Learned Counsel for the petitioner submits that the impugned order is manifestly illegal, inasmuch as it is one made in violation of the State Administrative Tribunal’s judgment and order dated 05.07.2017, which ordered reinstatement in service with consequential benefits, except back-wages, on the final outcome of inquiry. He submits that once the respondents have held that the petitioner is in no way guilty of any charge while reinstating him, there is no further inquiry, the outcome of which would delay consequential service benefits. He submits that the consequential service benefits, except back-wages would include the benefit of continuity of service. The petitioner had joined service along with 215 other untrained teachers in the year 1991. Once he is notionally taken to have been in continuous service, he cannot be deprived of the benefits of the Government Order dated 01.02.2000. It is also pointed out that the petitioner has retired pendente lite on 31.03.2018. He would, therefore, be entitled to revision of his emoluments as a trained teacher, including salary, G.P.F. and pension. He would also be entitled to arrears under all these heads. 17. Mr. It is also pointed out that the petitioner has retired pendente lite on 31.03.2018. He would, therefore, be entitled to revision of his emoluments as a trained teacher, including salary, G.P.F. and pension. He would also be entitled to arrears under all these heads. 17. Mr. Mrigraj Singh, learned Counsel appearing on behalf of the Basic Shiksha Adhikari and the Accounts Officer in the Basic Shiksha Adhikari’s office, refuted the aforesaid submissions. It is, however, not his case that the petitioner secured employment by submitting false documents. Rather, he has drawn the Court’s attention to paragraph no.12 of the counter affidavit, where it is clearly admitted that the petitioner’s father, the late Hridaya Narain Upadhyay was a man different from the other Hridaya Narain Upadhyay, whose wife had been paid Providend Fund. It is mentioned in that paragraph that the said Hridaya Narain Upadhyay worked at the Primary School, Barpar, whereas the petitioner’s father worked at the Primary School, Bhikharipur. It is also admitted that the petitioner’s father died on 05.09.1974. The aforesaid assertions make it clear that there is nothing left to be inquired against the petitioner. There could indeed be no further disciplinary proceedings taken against the petitioner by serving him with a charge sheet as directed by the Tribunal. That part of the Tribunal’s order has gone out of context. 18. Mr. Mrigraj Singh, however, submits that the petitioner joined on 02.07.2010 and would complete five years service on 02.07.2015. He has further been provided the pay scale of a trained teacher under the Government Orders, effective from 02.07.2015. He has drawn the Court’s attention to paragraph no.15 of the counter affidavit in this regard. He disputes the petitioner’s case that he is entitled, like the other untrained teachers appointed along with him on 29.10.1991, to a grant of trained teacher’s pay scale on completion of five years’ service reckoned from the year 1991, because in his case service has to be reckoned from 02.07.2010. 19. This Court has carefully perused the record and considered the rival submissions advanced on behalf of both sides. It is admitted for a fact that the petitioner was never at fault in securing his employment under the Dying-in-Harness Rules. His termination from service came about on account of the respondents confounding his father’s name with that of another teacher, who was his father’s namesake. It is admitted for a fact that the petitioner was never at fault in securing his employment under the Dying-in-Harness Rules. His termination from service came about on account of the respondents confounding his father’s name with that of another teacher, who was his father’s namesake. This fact was not detected or disclosed by the respondents until judgment by the State Public Tribunal. It is on that account that the Tribunal found the order of termination to be procedurally flawed and permitted the respondents to issue a charge sheet to the petitioner, resuming disciplinary proceedings from that stage. The Tribunal granted all consequential benefits to the petitioner while ordering his reinstatement, but the consequential benefits granted, were made available contingent on the final outcome of the inquiry/disciplinary proceedings. 20. Now, it is apparent that it was to say the least, negligence on the respondents’ part to have confounded the name of the petitioner’s father with another teacher’s and on that basis, subjected him to all this harassment. It is equally true that once the respondents admit the fact that it was for their mistake in confounding the petitioner’s father for another teacher, his namesake, that the petitioner’s services were terminated, the judgment of the State Public Service Tribunal would now apply in terms as if the petitioner had been finally exonerated in the inquiry. The direction to grant all consequential benefits to the petitioner would apply except back-wages, that were denied. It is also clear that consequential benefits include continuity of service. The relief of continuity is no mere notion or inconsequential fiction. It is to apply with all its logical incidents. The effect would be that the petitioner would be deemed in service all these years, but for his entitlement to receive back-wages. Full effect, therefore, has to be given to the benefit of continuity in service granted to the petitioner, that is an integral part of the Tribunal’s direction to grant consequential benefits. The petitioner, therefore, cannot be treated to be appointed w.e.f. 02.07.2010 in compliance with the order of the Basic Shiksha Adhikari dated 29.06.2010. The order of the Basic Shiksha Adhikari dated 29.06.2010 is in no way an order of appointment. It is an order to reinstate the petitioner in continuation of his original appointment, made way back on 29.10.1991, in pursuance whereto he had joined on 01.11.1991. The order of the Basic Shiksha Adhikari dated 29.06.2010 is in no way an order of appointment. It is an order to reinstate the petitioner in continuation of his original appointment, made way back on 29.10.1991, in pursuance whereto he had joined on 01.11.1991. The disassociation of the petitioner between 18.01.1992 until the petitioner’s reinstatement in service on 02.07.2010 has to be treated as effaced. 21. This being the effect of the Tribunal’s order and the consequential order of reinstatement, the petitioner would certainly be entitled to the benefit of the Government Order dated 01.02.2000, reckoning his appointment as an untrained teacher under the Dying-in-Harness Rules in terms of the order dated 29.10.1991. The petitioner would be entitled to a trained teacher’s pay scale on the basis of his appointment dated 29.10.1991, counting the period of five years with effect from the petitioner’s joining duties on 01.11.1991. 22. In the result, this writ petition succeeds and allowed with costs. The impugned order dated 05.07.2017 passed by the Basic Shiksha Adhikari, Jaunpur (Annexure no.14 to the writ petition) is hereby quashed. A mandamus is issued to the respondents to forthwith redetermine all emoluments payable to the petitioner, including salary, pension, Provident Fund and other entitlements, on the basis that the petitioner is entitled to the trained teacher’s pay scale on completion of five years service in terms of the Government Order dated 01.02.2000, reckoned with effect from the petitioner’s appointment, dated 29.10.1991, pursuant whereto he joined on 01.11.1991. The Basic Shiksha Adhikari, Jaunpur and the Accounts Officer in the office of the Basic Shiksha Adhikari, Jaunpur are ordered to redetermine the entire emoluments payable to the petitioner within two months of the date of receipt of a copy of this order and to pay all arrears on account of this revision within a period of two months, thereafter.