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2024 DIGILAW 685 (ALL)

Pradeep Kumar Yadav v. State of U. P.

2024-03-04

MANJIVE SHUKLA

body2024
JUDGMENT Manjive Shukla, J. Heard Sri. Kripa Shankar Singh, learned Senior Advocate assisted by Sri. Gaurav Singh, learned counsel appearing for the petitioner, learned Standing Counsel appearing for the Respondent No.1, Sri. Shivendra Singh Bhadauria, learned counsel appearing for the Respondents No.2 and 3 as well as Sri. Kushmondeya Shahi, learned counsel appearing for the Respondent No.4. 2. Petitioner through this writ petition has prayed for a direction thereby commanding the respondents to pay subsistence allowance admissible to the petitioner with effect from 24.11.2009 till the date of his reinstatement in service along with interest over the delayed payment. Petitioner has also prayed that he may be treated to have been appointed on the post of Assistant Teacher with effect from his initial date of appointment i.e. with effect from 2.7.2009 and may be paid all consequential service benefits on the basis of length of his service w.e.f. 2.7.2009. 3. Facts of the case, in brief, are that petitioner was appointed on the post of Assistant Teacher at Primary School Lokeyapur Khaga, District Fatehpur on 2.7.2009. Just after few months of his joining on the post of Assistant Teacher he was implicated in a criminal case and in connection thereto he was sent in judicial custody and therefore, could not report for work at the place of his posting. The District Basic Education Officer, Fatehpur passed an order on 16.12.2009 whereby petitioner's services were placed under suspension on the charge of unauthorized absence from duty with a contemplation that he will be paid subsistence allowance in terms of Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4. 4. Petitioner was convicted vide judgment and order dated 14.12.2016 passed by the Special Judge, E.C. Act, Allahabad in Sessions Trial No.521 of 2010 and therefore, he filed Criminal Appeal No.6498 of 2016 before the High Court. During pendency of the aforesaid appeal, petitioner was enlarged on bail vide order dated 16.11.2017 and ultimately, vide judgment and order dated 20.4.2018 passed by this court his appeal was allowed and he was acquitted from all the charges. 5. During pendency of the aforesaid appeal, petitioner was enlarged on bail vide order dated 16.11.2017 and ultimately, vide judgment and order dated 20.4.2018 passed by this court his appeal was allowed and he was acquitted from all the charges. 5. Petitioner after being enlarged on bail by this court and further his acquittal from criminal charges filed an application before the District Basic Education Officer, Fatehpur for allowing him to join on his post of Assistant Teacher and thereafter, the District Basic Education Officer, Fatehpur passed an order dated 13.7.2018 whereby suspension of the petitioner's services was revoked and he was reinstated in service on the post of Assistant Teacher in Primary School Lokeyapur, Block Bijaipur, District Fatehpur. Later on, petitioner has been transferred from District Fatehpur to District Prayagraj vide order dated 29.1.2021 and since then he is working in a Primary School at district Prayagraj. 6. Petitioner feeling aggrieved by non-payment of subsistence allowance for the period his services were placed under suspension and also feeling aggrieved by the respondents' action treating his appointment to be a fresh appointment w.e.f. the date of reinstatement in service i.e. 13.7.2018, has filed this writ petition. 7. Learned Senior Advocate appearing for the petitioner has submitted that once petitioner's suspension has been revoked and he has been reinstated in service vide order dated 13.7.2018, then he is entitled for payment of subsistence allowance for the period from 24.11.2009 till the date of his reinstatement in service for the reason that petitioner has been honourably acquitted in the criminal case vide judgment and order dated 20.4.2018 passed by this court in Criminal Appeal No.6498 of 2016. Learned Senior Advocate appearing for the petitioner has further submitted that after reinstatement of the petitioner in service it was obligatory on the appointing authority i.e. the District Basic Education Officer, Prayagraj to pass an order under Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 but in most arbitrary manner till date said decision has not been taken. 8. 8. Learned Senior Advocate appearing for the petitioner has argued that once suspension of petitioner's services made vide order dated 16.12.2009 has been revoked and he has been reinstated in service vide order dated 13.7.2018, petitioner's entire length of service should be taken into account for the purposes of grant of service benefits and notional pay fixation, whereas in most arbitrary manner respondents are treating petitioner's appointment on the post of Assistant Teacher as a fresh appointment with effect from 13.7.2018. 9. Learned Standing Counsel appearing for the petitioner has thus concluded his arguments and has submitted that the writ petition filed by the petitioner is liable to be allowed. 10. Sri. Shivendra Singh Bhadauria, learned counsel appearing for the Respondent No.2 i.e. District Basic Education Officer, Fatehpur has submitted that since petitioner has already been transferred from district Fatehpur to district Prayagraj therefore, whatever claims of the petitioner are pending, they are to be dealt with and decided by the District Basic Education Officer, Prayagraj. 11. Sri. Kushmondeya Shahi, learned counsel appearing for the Respondent No.4 on the basis of counter affidavit filed on behalf of Respondent No.4 has submitted that petitioner was initially appointed vide appointment order dated 2.7.2009 on the post of Assistant Teacher in district Fatehpur on probation of one year and before completion of his probation his services were placed under suspension vide order dated 16.12.2009. After acquittal of the petitioner from criminal charge he has been reinstated in service vide order dated 13.7.2018 and therefore, petitioner has been treated to be newly appointed with effect from 13.7.2018 and after completing one year's probation, he has become confirmed on the post of Assistant Teacher. Sri. Kushmondeya Shahi, learned counsel appearing for the Respondent No.4 has further submitted that suspension order dated 16.12.2009 categorically provided that petitioner shall be entitled to subsistence allowance only on submission of a certificate that he was not engaged in any business or profession but petitioner has not submitted the said certificate and even has not reported at the place where he was attached during suspension therefore, he is not entitled for subsistence allowance for the period of suspension. Sri. Sri. Kushmondeya Shahi, learned counsel appearing for the Respondent No.4 however could not justify as to why decision as contemplated under Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 has not been taken by the competent authority in respect of payment of subsistence allowance for the suspension period. 12. I have considered the rival submissions advanced by the learned counsels appearing for the parties. It is not disputed by the parties that the provisions of Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 are applicable in the matters of suspension of teachers working in the Primary Schools. This court finds that Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 provides that when suspension of the services of an employee is revoked, then the appointing authority is under obligation to pass separate order in respect of payment of salary for the suspension period. For ready reference, Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 is extracted as under:- "54-B. (I) When a Government servant who has been suspended is reinstated or would have been so reinstated but for his retirement on superannuation while under suspension, the authority competent to order reinstatement shall consider and make a specific order-- (a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement or superannuation as the case may be; and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in Rule 53, where a Government servant under suspension dies before the disciplinary or court proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended, subject to adjustment in respect of subsistence allowance already paid. (3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall, subject to the provisions of sub-rule (8), to be paid the full pay and allowances to which he would have been entitled, had he not been suspended: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed due to reasons directly attributable to the Government servant, it may, after giving him an opportunity to make his representation within sixty days from the date on which the communication in this regard is served on him and after considering the representation, if any, submitted by him, direct, for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay only such amount (not being the whole) of such pay and allowances as it may determine. (4) In case falling under sub-rule (3) the period of suspension shall be treated as a period spent on duty for all purposes. (5) In case other than those falling under sub rules (2) and (3), the Government servant shall subject to the provisions of sub-rules (8) and (9), be paid such amount (not being the whole) of the pay and allowances to which he would have been entitled had he not been suspended, as the competent authority may determine, after giving notice to the Government servant of the quantum proposed and after considering the representation, if any submitted by him in that connection within such period (which in no case shall exceed sixty days from the date on which the notice has been served) as may be specified in the notice. (6) Where suspension is revoked pending finalisation of the disciplinary or the court proceedings, any order passed under sub-rule (1) before the conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the authority mentioned in sub-rule (1) who shall make an order according to the provisions of sub-rule (3) or sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5), the period of suspension shall not be treated as a period spent on duty unless the competent authority specifically directs that it shall be so treated for any specified purpose: Provided that if the Government servant desires, such authority may order that the period of suspension shall be converted into leave of any kind due and admissible to the Government servant. NOTE.--The order of the competent authority under the preceding proviso shall be absolute and no higher sanction shall be necessary for the grant of (a) extraordinary leave in excess of three months in the case of temporary Government servant; and (b) leave of any kind in excess of five years in the case of permanent Government servant. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) shall be subject to all other conditions under which such allowances admissible. (9) The amount determined under the proviso to sub-rule (3) or under sub-rule (5) shall not be less than the subsistence allowances and other allowances admissible under Rule 53. (10) Any payment made under this rule to Government servant on his reinstatement shall be subject to adjustment of the amount, if any, earned by him through an employment during the period between the date of suspension and the date of reinstatement or the date of retirement on superannuation while under suspension. Where the emoluments admissible under this rule are equal to or less than those earned during the employment elsewhere, nothing shall be paid to the Government servant. Note. - Where the Government servant does not report for duty within reasonable time after the issue of the order of reinstatement after suspension, no pay and allowances will be paid to him for such period till he actually takes over charge." 13. This court further finds that it is not disputed by the parties that till date the order under Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 has not been passed in the matter of petitioner regarding payment of salary which includes subsistence allowance for the period during which petitioner's services were under suspension. 14. So far as petitioner's appointment being treated to be fresh appointment with effect from the date of reinstatement in service i.e. with effect from 13.7.2018 is concerned, the order dated 13.7.2018 is completely silent. 15. 14. So far as petitioner's appointment being treated to be fresh appointment with effect from the date of reinstatement in service i.e. with effect from 13.7.2018 is concerned, the order dated 13.7.2018 is completely silent. 15. In view of the aforesaid reasons, without entering into merits of the case, this writ petition is finally disposed of with a direction to the District Basic Education Officer, Prayagraj to pass order under Fundamental Rule 54-B of the Financial Hand Book, Volume-II Part 2 to 4 in relation to payment of salary to the petitioner for the suspension period, within a period of two months from the date of service of certified copy of this order. It is further provided that petitioner may file a fresh representation before the District Basic Education Officer, Prayagraj for fixation of his pay taking into account his entire length of service and the said representation shall be decided by the Respondent No.4 by passing a speaking and reasoned order within a period of two months from the date of service of certified copy of this order.