Rajesh Kumar Srivastava And ... vs State Of U.P. And Others
2012 Latest Caselaw 5032 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 58
 

 
Case :- WRIT - A No. - 29911 of 2012
 

 
Petitioner :- Rajesh Kumar Srivastava And Others
 
Respondent :- State Of U.P. And Others
 
Petitioner Counsel :- Satya Prakash Pandey,Vivek Srivastava
 
Respondent Counsel :- C.S.C.,R.S. Prasad,Vikram Bahadur Singh
 

 
AND
 

 
Case :- WRIT - A No. - 19414 of 2009
 

 
Petitioner :- Rajesh Kumar Srivastava & Ors
 
Respondent :- State Of U.P. Thru Principal Secy. Home & Ors
 
Petitioner Counsel :- Satya Prakash Pandey,Vivek Srivastava
 
Respondent Counsel :- C.S.C.
 

 
Hon'ble Sibghat Ullah Khan,J.

Heard learned counsel for the petitioners who are four in number and learned standing counsel for the respondents who has also filed Supplementary counter affidavit. Learned counsel for the petitioners stated that he did not propose to file any Supplementary rejoinder affidavit.

In the year 1995 police modern schools were established to impart education to the children of police/P.A.C. personnel. For running the police modern schools registered society was formed known as Uttar Pradesh Police Shiksha Samiti in the year 1997. Director General of Police was ex-officio President of Board of Directors of the Society. Inspector General of Police was ex-officio treasurer of the Society.

The petitioners were appointed as teachers in police modern school 12th Battalion P.A.C. Fatehpur. They were appointed after passing through selection process as prescribed under the rules/regulations. Petitioner no.1 was appointed in the year 2002. Petitioner nos. 2 and 3 were appointed in the year 1998 and petitioner no.4 in the year 2007. In the appointment letters of the petitioners it is mentioned that after passing through Civil (written) examination and interview petitioners were appointed.

Thereafter new directions were issued on 18.3.2009 which are contained in Annexure-7 to the writ petition providing that appointments from 2009-10 onward would be made on one year's contract basis. Other directions were also given regarding remuneration including dearness allowance etc. However under clause 11 it was provided that the employees who are already working and getting salary, their salary would not be reduced on implementation of the new pay structure through the said order. Clarifications were issued on 1.6.2009. Thereafter a letter was issued on 26.3.2009 directing that screening test was to be held of all the teachers working in modern school 12th P.A.C. Battalion, Fatehpur on 28.3.2009. Thereafter date of screening test was postponed to 5.4.2009. Several teachers of the school in question including the petitioners filed an application on 1.4.2009 to the Commandant P.A.C. 12th Battalion protesting against screening test. Thereafter petitioners also filed writ petition no.19414 of 2009 challenging the validity of the provision providing for holding of screening test. Thereafter another letter was issued on 27.3.2012 directing that screening test of the teachers of Modern School 12th Battallion, Fatehpur would be held on 30.3.2012. Copy of the said letter is Annexure-11 to the writ petition. It is also mentioned in the said letter that in case a teacher did not participate in the screening test, it would be deemed that he was not interested in working as teacher. The petitioners protested that they could not be compelled to face screening test as they had already filed writ petition no.19414 of 2009 against the screening test in the High Court. As petitioners did not participate in the screening test hence through orders dated 31.3.2012 their services were terminated. Extracts of the said termination orders are contained in Annexure-13 to 16 to the writ petition and have been challenged through this writ petition. Order dated 27.3.2012 has also been challenged through this writ petition.

Learned counsel for the petitioners on inquiry from the court states that if termination order is set aside then he will not press the earlier writ petition filed by these very petitioners in the form of writ petition no.19414 of 2009.

The main argument of learned counsel for the petitioners is that the provision of screening test for the teachers who were already working is not legal and non-passing of the screening test or non-appearance in the screening test may by maximum entail denial of higher pay but not removal. Annexure-7 to the writ petition is the policy decision of 18.3.2009 and 1.6.2009 which runs from page 48 to page 95. On page 78 it is mentioned that there would be a core group of teachers normally consisting of 40% of total teaching staff, they would be paid regular salaries with dearness allowance and appointments to this core group would be made after due screening of existing teachers. The precise paragraph is quoted below.

"Appointments would be made after due screening of existing teachers if they fulfil the required essential qualifications and are suitable otherwise will be given preference. If any existing teacher does not fulfil the laid down criteria and lacks required essential qualification they will be considered for the lower post.

There may some cases where in any PMS there is a confirm teacher on the roles of the school and does not fulfil the essential criterias and lacks essential qualifications they can be given one year time to acquire such essential qualifications otherwise they can be sacked."

The thrust of main argument of learned counsel for the petitioner is that if petitioners did not participate in the screening test, they would not be included in the core group and they would not be paid higher salaries however, they could not be removed.

Shri S.P.Mishra, learned standing counsel has vehemently opposed the prayer in the writ petition and has mainly placed reliance upon Annexure 4 to the Supplementary counter affidavit. Annexures S.C.A.4 and 5 are minutes of the meeting of central board of directors dated 12.5.2009 and 10.5.2012 which are ramifications of the policy decision. In Annexure S.C.A.-4 under clause-1 of agenda no.4 it is provided that those teachers who participated in the screening test and got more than 50% marks they would be appointed on contract basis at once. Under clause-3 it is provided that those teachers who got less than 35% marks would be informed that they were not entitled to new pay scale and if they were ready to work on the existing pay then their services for the current academic session would be continued and fresh screening test would be taken at the end of the current academic session and if their performance was not found upto the mark their services would be deemed to have come to an end.

In my opinion screening test may legally be held for granting higher pay/pay scale. However, once an employee is appointed after facing the selection process prevalent at the time of the appointment, subsequent change in the selection process cannot be made basis for asking the incumbent to go through the screening test again failing which his services would be terminated. Service conditions cannot be changed to the detriment of existing employees. However for fresh appointments service conditions can very well be changed. Similarly for granting higher benefits screening test of existing employees can very well be provided. However, merely non-participation in the screening test or failure in the screening test can not entail termination.

Accordingly, writ petition is allowed. Impugned termination orders are set aside. Petitioners shall be reinstated and paid wages for the termination period also. However, it is clarified that as they had not participated in the screening test hence they shall not be entitled to any higher pay/pay scale which is paid to those who clarify the screening test.

Writ petition no.19414 of 2009 file of which has just now been summoned from the office is dismissed as not pressed in view of above statement of learned counsel for the petitioner.

Order Date :- 11.10.2012

RS