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2023 DIGILAW 2254 (ALL)

Ram Prakash v. State of U. P.

2023-10-04

KSHITIJ SHAILENDRA

body2023
JUDGMENT : KSHITIJ SHAILENDRA, J. Ref: Civil Misc. Impleadment Application No. 9 of 2022 1. By means of this application, impleadment of present Manager has been sought. 2. This Court earlier issued notices on the impleadment application. 3. Office report dated 10.10.2022 indicates that affidavit of service has been placed on record. Apart from this, the endorsement made by the Post Master of the High Court Post Office on the back of the summons sent to the proposed respondent No. 6, there is an endorsement that item delivery is confirmed. 4. In view of above, service of notice upon proposed respondent No. 6 is deemed to be sufficient. 5. The impleadment application is allowed. 6. Let necessary impleadment be carried out by the learned counsel for the petitioner during the course of the day. Order on Writ Petition 1. Heard on merits of the writ petition. 2. By the order impugned dated 08.07.2005, the appointment of the petitioner has been held to be invalid and contrary to law by the District Inspector of Schools, Mahamayanagar, mainly on the ground that at the time of appointment, the petitioner was aged about 16 years, 6 months and 7 days. The other ground is that the petitioner is real brother of Principal and, therefore, his appointment is hit by section 16 of U.P. Intermediate Education Act, 1921. In the body of the order, it has also been observed that the appointment is beyond the sanctioned strength and the officiating Principal had no right to appoint the petitioner. 3. Learned counsel for the petitioner submits that insofar as the petitioner’s age at the time of appointment is concerned, there is no dispute that he was 16 years, 6 months and 7 days old. However, the submission is that the petitioner was appointed in the year 1977 when the Institution was not in grant-in-aid and it came on the grant-in-aid list in the year 1984 and the service book, which was prepared at that time, clearly mentioned the same date of birth of the petitioner, i.e. 31.12.1960. However, the submission is that the petitioner was appointed in the year 1977 when the Institution was not in grant-in-aid and it came on the grant-in-aid list in the year 1984 and the service book, which was prepared at that time, clearly mentioned the same date of birth of the petitioner, i.e. 31.12.1960. The submission is that the order impugned has been passed by entertaining a complaint made by the petitioner’s real brother after a period of about 27 years of service and though, admittedly the petitioner’s real brother was Principal of the Institution, insofar as the date of appointment of the petitioner is concerned, he was not Principal and the appointment was made by one Ved Pal Singh in the capacity of officiating Principal and there is no relationship in between the petitioner and the officiating Principal. 4. He further submits that there is no allegation of fraud or misrepresentation on the part of the petitioner and once the respondents continued to permit the petitioner in service for about three decades, despite clear entry of date of birth in the service records, a highly belated order passed to the detriment of the interest of the petitioner, is hit by following authorities of this Court: (i) U.P. Power Corporation Limited vs. Stya Narain, 2005 (2) ESC 1245 (ii) Shiv Charan vs. Executive Officer, Nagar Palika Parishad, Lalitpur and Another, 2006 (6) ADJ 310 5. In the aforesaid authorities, almost identical situation had arisen before this Court and the Court, after noting down the rival contentions, observed that if the concerned petitioner was admitted into service below age, both parties were equally guilty and there being no misrepresentation of the petitioner on record, denying continuance of service would be illegal. [Vide U.P. Power Corporation Limited vs. Satya Narain (supra)] 6. [Vide U.P. Power Corporation Limited vs. Satya Narain (supra)] 6. In Shiv Charan vs. Executive Officer, Nagar Palika Parishad, Lalitpur and another (supra), the case had arisen with regard to the date of retirement of the concerned petitioner and then the Court observed that if the petitioner was admitted in service, being minor, and that was reflected from the date of birth being recorded in the service book in the year 1983, then remedial measures ought to have been taken at that point of time, but having permitted the situation to continue and hold field for such a long period of time, then respondents cannot be permitted to change his date of birth at the fag end of his career. 7. In the present case, an interim order was passed in 2005 at the strength thereof, the petitioner continued to discharge his duties in the Institution. He has retired after attaining the age of superannuation in the year 2020 and it is contended that post retiral benefits admissible to the petitioner are not being released only on account of pendency of the writ petition. 8. Learned Standing Counsel has vehemently opposed the writ petition and has argued that officiating Principal had no right to appoint the petitioner as things were managed in the Institution at the relevant point of time. He further submits that admittedly the petitioner being underage at the time of his appointment, it has rightly been dislodged by the District Inspector of Schools. He further submits that any appointment beyond the sanctioned strength would be illegal and, hence, the order impugned cannot be interfered with. 9. Having heard the learned counsel for the parties, I find that entertaining a complaint made by the real brother, who was Principal of the Institution not at the time of appointment of the petitioner, but otherwise, after a period of 27 years and dispensing with the services of the petitioner in 2005 despite entry in the service book made in decade of 1980, the order dislodging of appointment would be too harsh, particularly in the circumstances when the petitioner has already retired from his post three years ago. Insofar as the power and competence of officiating Principal to appoint a person is concerned, it is well settled that officiating Principal is as good as the regular Principal and there being no contrary decision placed before this Court, the Court finds that appointment made by the officiating Principal is not hit by any legal provision and, even otherwise, at this stage the Court is not inclined to enter into such details, particularly in view of law laid down by the Hon’ble Supreme Court in the case of Nani Gopal Dutta vs. Union of India and Others, (2002) 1 UPLBEC 439 , where the Apex Court has dealt with almost identical situation, which is existent in the present case and in the case before the Supreme Court also, the appellant concerned had availed entire benefits of service including payment of salary at the strength of interim order passed in his favour and, therefore, the Supreme Court declined to interfere in the order impugned before it. 10. Following the decision of Apex Court in the case of Nani Gopal Dutta (supra) and the peculiar facts of this case, as discussed herein-above, the Court is satisfied that post retiral benefits be released to the petitioner. The respondents are directed to compute the retiral benefits admissible to the petitioner on the basis of his last drawn salary and release the same in his favour within a period of four months from the date a certified copy of this order is produced before them along with appropriate application. 11. The order impugned dated 08.07.2005 passed by District Inspector of Schools, Mahamayanagar is hereby quashed. 12. The writ petition is, accordingly, allowed.