Durga Prasad Chaturvedi vs State Of U.P. And Others
2011 Latest Caselaw 859 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 26
 

 
Case :- WRIT - A No. - 49162 of 2006
 

 
Petitioner :- Durga Prasad Chaturvedi
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- B.N. Chaturvedi,Smt. C.K. Chaturvedi
 
Respondent Counsel :- C.S.C.,C.K. Rai,K.Shahi
 

 
Hon'ble Arun Tandon,J.

Heard learned counsel for the petitioner and Shri K. Shahi, Advocate is present for the respondents.

Petitioner before this Court seeks quashing of the order of the Joint Director, Basic Education, Vth Region Varanasi dated 25.6.1999 whereunder the request made by the petitioner for grant of exemption from training, has been rejected. The petitioner further seeks a writ of mandamus declaring the order dated 11.5.2006 as inoperative whereby the Secretary, Basic Shiksha Parishad, Allahabad has refused to count the period between 1.10.1974 to 30.6.1998, as period spent on duty by the petitioner for payment of salary and other purposes.

Repeated petitions have been filed before this Court by the petitioner. However, the undisputed facts as emerge from the records of the present writ petition are: The petitioner before this Court was initially appointed as Assistant Teacher in Parishadi Vidyalaya on 6.12.1962 as untrained Teacher. He was afforded an opportunity to obtain training in terms of the Government Order applicable vide letter of the Deputy Director dated 17.8.1969. He did not avail this opportunity. He was thereafter afforded another opportunity to obtain training which he again failed to take benefit of.

Between the period 1.7.1970 to 30.9.1974, the petitioner remain absented from the institution. He however made a claim for payment of salary for the said period on the allegation that he has been regularly working and has wrongfully denied salary. A certificate was issued by the Headmaster of the institution stating therein that the petitioner had been working between 1.7.1970 to 30.9.1974. After much correspondence salary for the period 1.7.1970 to 30.9.1974 was released in favour of the petitioner in 1985. For any subsequent period after 30.9.1974 no claim was ever set up by the petitioner within reasonable time.

After receiving salary for the period 1.7.1972 to 30.9.1974 in the year 1985 i.e. after nearly 14 years he had actually not worked in the institution, and was not paid salary, he set up a claim for being permitted to continue and paid his salary regularly. An order dated 17.10.1990 was passed by the District Basic Education Officer holding therein that the services of the petitioner shall be deemed to have been terminated automatically on account of long absence from duty.

Petitioner filed Writ Petition No. 31621 of 1990 challenging the order of termination wherein no interim order was granted. The writ petition was finally allowed vide order dated 16.1.1998 with the observation that the issue as to whether the petitioner was entitled to exemption from training, and if to grant him proper opportunity for completing the training in accordance with law. For the purpose decision was directed to be taken by the respondent-authority within a period of two months.

It may be specifically recorded that the writ court even after noticing that the petitioner has not been paid his salary subsequent to 1974, did not issue any direction either for reinstatement or for payment of salary for the intervening period.

However, the B.S.A. for the reasons best known to him after 8 years of the judgement of this Court dated 16.1.1998 and without any exemption from training being granted vide order dated 25.6.1999 directed reinstatement of the petitioner.

This order has become the cause for repeated writ petitions being filed for the relief that the entire period after 1970 be treated as spent on duty for service benefits including salary pension etc.

The Deputy Director of Education had considered the issue of grant of exemption to the petitioner under an order dated 25.6.1999 as directed under Writ Court dated 16.1.1998 and has recorded a categorical finding that in terms of the Government Order dated 21.10.1994 only such teachers were to be granted exemption from training, who had completed 10 years of service as untrained teacher on the date mentioned in the Government Order. Since the petitioner had not actually worked even for a single day, it was held as a matter of fact that the case of the petitioner was not covered under the Government Order. It has been decided that the petitioner was not entitled for grant of exemption from training in terms of the Government Order applicable. It appears that the order dated 25.6.1999 refusing exemption from training was not challenged within reasonable time.

The petitioner filed Writ petition No. 65712 of 2005 claiming that the period between 1.10.1974 to 1.7.1998 be regularised. The writ petition was disposed of by providing that the respondent no. 3 i.e. the Secretary, Basic Shiksha Parishad, Allahabad shall examine the grievance of the petitioner.

The Secretary, Basic Shiksha Parishad has examined the entire facts and vide order dated 11.5.2006 as rejected the claim of the petitioner after recording that the petitioner had actually not worked in the institution between 1970 to 1974. Payment of salary was affected for this period only in the year 1995 because of the certificate issued by the Headmaster of the Institution. It has been found that such payment of petitioner was totally illegal. It has further been recorded that subsequent to 1.10.1974, the petitioner had not worked in the institution up to 1998 when he was reinstated under the order of the Basic Shiksha Adhikari. It has been held that the request made by the petitioner for exemption from training had been rejected under the order of the Additional Director Basic dated 25.6.1999 which has become final. Finally, it has been held that the service between 1.10.1974 to 30.6.1998 cannot be treated as period spent on duty nor can be regularised.

Challenging the order dated 11.5.2006 and dated 25.6.1999, counsel for the petitioner contends that since his termination was set aside by the court under order dated 16.1.1998, in view of the financial hand book Rule 54-A, it is to be deemed that he has been reinstated with continuity in service and entire period of absence has to be treated as on duty.

The contention so raised has only been so stated to be rejected. The Single Judge while allowing the Writ Petition No. 31621 of 1990 vide order dated 16.1.1998 did not direct reinstatement with full wages nor the Court directed payment of salary for any period subsequent to 1974. In view of the operative operation of the judgement dated 16.1.1999, it does not lie in the amount of the petitioner to contend that the period subsequent to 1974 be treated as spent on duty. Petitioner could not demonstrate by any evidence on record that he had actually worked in the institution subsequent to 1974 and except for referring to reports which suggest that the petitioner should be treated in service, no material evidence could be brought on record to show that the petitioner was restrained from discharging duties after 1974. It was only after getting salary in 1985 i.e. after nearly 14 years, the petitioner grew wiser and raised a grievance that he was not permitted to work. No reasonable man will wait for decades for being permitted to work and to be paid salary.

This Court has no hesitation to hold that it is a case of abandonment of service. The order dated 17.10.1990 had already been set aside by the writ court vide order dated 16.1.1998 and the matter was remanded only for examining as to whether the petitioner was entitled to exemption from training or not. From the order of the Assistant Director, Basic Education, it is crystal clear that in terms of the Government Order applicable on the subject dated 21.10.1994, the petitioner was not entitled for exemption from training as he had not completed 10 years of continuance service on the relevant date.

In the totality of the circumstances on record, this Court finds that there is no illegality in the order dated 25.6.1999 which has been challenged after 7 years of passing of the said order. The order of the Secretary, Basic Shiksha Parishad dated 11.5.2006 in the matter, refusing to regularize the period between 1974 to 1998 also does not warrant any interference under Article 226 of the Constitution of India.

Writ petition lacks merit and is accordingly dismissed.

Order Date :- 5.4.2011

Puspendra