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Allahabad High Court · body

2022 DIGILAW 889 (ALL)

Vimal Kumar Pandey v. State of U. P.

2022-05-30

SIDDHARTH

body2022
JUDGMENT : 1. Heard learned counsel for the petitioner and learned Standing Counsel appearing on behalf of State-respondents. 2. This writ petition has been filed praying for quashing of the impugned order dated 22.10.2021 passed by Basic Education Officer, Auraiya, respondent no.3, refusing to grant bonus, increments, selection grade and suspension allowance to the petitioner. Further prayer has been made for directing the aforesaid respondent to grant bonus and increment from 22.12.1997; selection grade from 2007 and arrears of salary from 22.1.1997 to 22.12.2002 with regard to untrained grade and make payment of interest at the rate of 10 % on the delayed payment of the aforesaid amount. 3. The brief facts of the petition are that the petitioner was appointed as Assistant Teacher untrained grade under Dying-in-Harness Rules on 27.10.1997 in Pandit Nehru Madhyamik Vidyalay, Bhararipur, Auraiya, a duly aided and recognized institution. The respondent no.3, Basic Education Officer, Auraiya, by the order dated 30.5.1998, terminated the services of the petitioner without following any procedure prescribed under law but by the order dated 09.11.19998, the Joint Director of Education (Basic), Kanpur Region, Kanpur, set aside the termination order, but the petitioner was not allowed to join the institution. Hence he preferred a Writ Petition No. 43219 of 1998, wherein interim order was passed in favour of the petitioner. Thereafter, Head Master of the institution filed Writ Petition No. 49586 of 1999 challenging the same order dated 09.11.1998. Both petitions were clubbed together and while the petition of the petitioner was allowed, the petition of Head Master was dismissed by this Court vide order dated 13.9.2004. The Head Master of the institution also preferred a Special Appeal against the judgement and order dated 13.09.2004, which was dismissed and thereafter after filing of contempt petition, the petitioner was permitted to join his duties in the institution. He was permitted to join, but never granted the benefits of trained grade and other benefits and hence he filed Writ Petition No. 67145 of 2006, which was allowed by the order dated 25.01.2010 directing the respondents to grant trained grade to the petitioner. The aforesaid order of this government dated 25.01.2010 was subjected to Special Appeal and it is still pending. 4. The aforesaid order of this government dated 25.01.2010 was subjected to Special Appeal and it is still pending. 4. The Principal of the institution thereafter suspended the petitioner, which was stayed by this Court and thereafter termination order was passed against the petitioner, which was disapproved by the Basic Education Officer by the order dated 05.3.2019. Thereafter petitioner was allowed to work. With regard to his grievance, the petitioner represented before the respondents, but nothing was done. Hence he approached this Court by way of Writ Petition No. 7674 of 2021, which was disposed of vide order dated 02.8.2021 directing the Basic Education Officer to examine the grievance of the petitioner. In pursuance of the aforesaid direction of this Court, impugned order dated 22.10.2021 was passed by Basic Education Officer, Auraiya,, whereby the entire claim of the petitioner has been rejected on the ground that on account of repeated breaks in service of the petitioner from 22.12.1997, he can not be permitted to have any bonus, increment, suspension allowance or selection grade on 10 years of satisfactory service since he never had 10 years of satisfactory service. Hence the petitioner is before this Court. 5. Counter affidavit has been filed on behalf of respondent nos. 2 & 3, Joint Director of Education (Basic), Kanpur Region, Kanpur and Basic Education Officer, Auraiya, wherein it has been stated that the service of the petitioner was repeatedly interrupted on account of disciplinary proceedings. Therefore, he cannot be granted relief prayed. The government order dated 28.10.2021 provides that the employees against whom departmental proceedings or criminal case is pending shall not be entitled to bonus till the final decision of disciplinary proceedings and criminal trial. During suspension period, the petitioner never came to the institution or submitted attendance certificate. Therefore, he cannot be given subsistence allowance for the period of suspension. The Committee of Management has not taken decision regarding the payment of arrears of subsistence allowance to the period for suspension period. As per the report of Committee of Management arrears of 7th pay commission have been paid to the petitioner. As per the order of this Court in Writ Petition No. 67145 of 2006, Basic Education Officer, Auraiya, passed the order dated 6.5.2010 for payment of trained grade scale to the petitioner as per government order dated 25.01.2005. As per the report of Committee of Management arrears of 7th pay commission have been paid to the petitioner. As per the order of this Court in Writ Petition No. 67145 of 2006, Basic Education Officer, Auraiya, passed the order dated 6.5.2010 for payment of trained grade scale to the petitioner as per government order dated 25.01.2005. A letter dated 20.10.2021 has also been sent to the Manager, Head Master of the institution and Finance Account Officer in compliance of the order of this Court dated 6.5.2010 passed in Writ Petition No. 67145 of 2006. The Manager of the institution has informed that due to interruption in service of the petitioner on account of suspension, the increments, selection grade and suspension allowance of the petitioner for the period of suspension cannot be paid to him. It has further been stated that the Committee of Management never requested for payment of arrears of suspension allowance nor submitted any bill to his effect before the answering respondents.’ After hearing the rival contentions, this Court finds that the petitioner was repeatedly subjected to harassment by the Committee of Management. He was granted appointment under Dying in Harness Rules as untrained teacher on 27.10.1997 and without resort to any proceedings and following any procedure, his services were terminated on 30.5.1998. Despite the aforesaid order having been set aside by the Joint Director of Education aforesaid he was not allowed to join the institution. He has to file Writ Petition No. 43219 of 1998 for payment of his salary and the Principal of the Institution also filed a writ petition challenging the order passed by respondent no.2 in favour of the petitioner. While the writ petition of the petitioner was allowed and the petitioner was directed to be restated in service with full back wages and payment of arrears of salary, the writ petition of the Principal of the institution was dismissed. The Special Appeal Court did not granted any relief to the Principal. Thereafter again the petitioner was suspended from service and thereafter terminated but the termination order was disapproved by the District Basic Education Officer on 5.3.2019. The Special Appeal Court did not granted any relief to the Principal. Thereafter again the petitioner was suspended from service and thereafter terminated but the termination order was disapproved by the District Basic Education Officer on 5.3.2019. Thereafter the petitioner approached this Court by way of Writ Petition No. 7674 of 2021 praying for payment of his entitlement, which was disposed of and in compliance of the same, the impugned order dated 22.10.2021 has been passed denying the entire claim of the petitioner on the ground that there were breaks in service and he never completed 10 years of satisfactory service. 6. The appointment of the petitioner was under Dying in Harness Rules and therefore, it was substantive appointment, which could not have been done away without recourse to departmental inquiry and opportunity of hearing. All the proceedings of suspension and termination against the petitioner were illegal and it is on record that till date he has not been awarded any punishment in any proceedings. All the proceedings against the petitioner were clearly mala fide and attempts were made to do away with services of the petitioner by the Principal of the institution. 7. There is no material on record, which may prove that the petitioner committed any misconduct, which may disentitle him to the claims made in the writ petition. Mere implication in false and illegal proceedings not resulting into in any punishment cannot be made ground for denying the claim of the petitioner. The impugned order has been passed without consideration of the legal position in this regard and in the counter affidavit it has been admitted that the petitioner was entitled to trained pay scale as per government order dated 25.01.2005. 8. In view of the above, impugned order dated 22.10.2021 passed by Basic Education Officer, Auraiya, respondent no.3, is hereby quashed. 9. The respondent nos. 2, 3 & 4 are directed to ensure that the petitioner is paid his bonus, increment from 22.12.1997, selection grade from 2007, arrears of salary from 22.12.1997 to 22.12.2002 of untrained grade alongwith 7.5% interest, within eight weeks from today. 10. In case this order is not complied within time, petitioner shall become entitled to 12% simple interest on the amount due. The State Government shall be free to recover 4.5% additional interest from the public servant/servants, who is/are found responsible for the delay. 11. The writ petition is allowed.