Yogendra Kumar vs State Of U.P. And Others
2013 Latest Caselaw 5792 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 11									A.F.R.
 

 
Case :- WRIT - A No. - 8338 of 2013
 

 
Petitioner :- Yogendra Kumar
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- N.L. Pandey,Suyash Pandey
 
Counsel for Respondent :- C.S.C.,B.P. Singh,Yatindra
 

 
Hon'ble Sabhajeet Yadav,J.

Rejoinder affidavit filed today is taken on record.

2. Heard Sri N.L. Pandey, learned counsel for the petitioner, Sri B.P. Singh for respondents no.3, 4 and 5 and Sri Yatindra for respondent no.2.

3. By this petition, the petitioner has challenged the order dated 27.07.2012 passed by District Basic Education Officer, Bulandshahar, whereby the representation of the petitioner is rejected, which has been decided in pursuance of order dated 9.04.2012 and modified order dated 24.04.2012 passed by this Court in Writ Petition No.63951 of 2006 earlier filed by the petitioner.

4. It is stated that the case of the petitioner in aforesaid writ petition was that he was appointed on the post of Assistant Teacher on 25.04.2001 in Junior High School Bheem Nagar, Gulawathi District-Bulandshahar. The institution is run by the private Committee of Management constituted through the society registered under the Societies Registration Act. The aforesaid appointment of the petitioner was approved on 19.4.2001 by the District Basic Education Officer, Bulandshahar. At the time of appointment of the petitioner the institution was not in grant in aid list of the State Government. However, when the institution came into grant-in-aid list of the State Government in the year 2006 the payment of salary has been made to other teachers of the institution from the State exchequer but the petitioner has not been paid his salary so far on the allegation that he had tendered his resignation on 5.7.2002 and was not a teacher of the institution. By filing a rejoinder affidavit in the writ petition it was stated that the petitioner was continuously working on the post from the date of his initial appointment and signed the staff attendance register upto the year 2003. Thereafter the Manager has stopped him from signing of the attendance register. Keeping in view the aforesaid stand of Management of the institution in mind vide judgment and order dated 9.4.2012 this Court has directed the District Basic Education Officer to decide the controversy as to whether the petitioner had willingly submitted his resignation from the post of Assistant Teacher in the institution on 5.7.2002 and as to whether he was permitted to sign the attendance register upto the year 2003 or not. In case the District Basic Education Officer, Bulandshahar finds that the petitioner had not voluntarily submitted his resignation he shall be taken back into service and be paid his salary from the State exchequer after verifying from the staff attendance register of the year 2002-2003 within a period of two months from the date of production of certified copy of the aforesaid order before him.

5. For ready reference it would be appropriate to quote the direction given by this Court in writ petition earlier filed by the petitioner as under:-

"In this view of the matter, it would be appropriate to direct the District Basic Education Officer, Bulandshahr to decide the controversy involved in this case as to whether the petitioner has willingly submitted his resignation from the post of Assistant Teacher in the institution on 5.7.2002, and as to whether he has been permitted to sign Staff Attendance Register upto the year 2003 or not. In case, the District Basic Education Officer, Bulandshahr finds that the petitioner has not voluntarily submitted his resignation, he shall be taken back into service and be paid his salary from the State Exchequer after verifying from the Staff Attendance Register of the years 2002 and 2003. Such exercise shall be completed by the District Basic Education Officer, Bulandshahr, within a period of two months from the date of production of a certified copy of this order produced before him. However, while undertaking such exercise, the District Basic Education Officer, Bulandshahr is required to pass a reasoned and speaking order on the question involved."

6. In pursuance of said order passed by this Court the District Basic Education Officer has passed the impugned order dated 27.7.2012 contained in Annexure-15 of the writ petition, whereby the representation of the petitioner has been rejected.

7. For better appreciation of the controversy it would be useful to extract the entire impugned order dated 27.7.2012 passed by District Basic Education Officer, Bulandshahar as under:-

dk;kZy; ftyk csfld f'k{kk vf/kdkjh] cqyUn'kgj

[email protected]@1419&22 @2012&13 fnukad 27-7-12

ekuuh; mPp U;k;ky; bykgkckn esa ;ksftr fjV ;kfpdk la[;k&[email protected] ;ksxsUnz dqekj iq= Jh >q.Mk flag cuke m0iz0 jkT; ljdkj ,oa vU; esa ek0 mPp U;k;ky; }kjk ikfjr vkns'k fnukad 09-04-2012 ,oa la'kksf/kr vkns'k fnukad 24-04-2012 ds dze esa oknh ;ksxsUnz dqekj }kjk izLrqr izR;kosnu fnukad 10-05-2012 dk fuLrkj.kA

;ksxsUnz dqekj dh fu;qfDr bl fo|ky; esa fnukad 19-04-2001 dks gqbZ FkhA tSlk fd fo|ky; izcU/kd us lwfpr fd;k gS fd buds }kjk fnukad 05-07-2002 dks vius in ls LosPNk ls R;kx i= fn;k x;k] bl ifjis{k esa buls fjDr gq, in dks Hkjus ds fy, bl dk;kZy; ls foKkiu dh vuqefr ekaxh x;hA bl ij bl dk;kZy; }kjk fu;ekuqlkj ;g vko';d le>k x;k fd ;ksxsUnz dqekj ls R;kx i= dh iqf"V djk;h tk;s QyLo:i ;ksxsUnz dqekj dks iathd`r uksfVl Hkstk x;k] ftldk mUgksus mRrj ugh fn;kA blls fcYdqy Li"V gks x;k fd ;ksxsUnz dqekj }kjk R;kx i= LosPNk ls fn;k x;k gSA ,oa izcU/kd dks in ds foKkiu dh vuqefr iznku dj nh x;hA

izcU/kd }kjk buds LFkku ij fu;qDr fd;s x;s O;fDr dk vuqeksnu bl dk;kZy; }kjk fu;ekuqlkj iznku dj fn;k x;k rHkh ls fu;qDr v/;kid fo|ky; esa dk;Zjr gSA

oknh us Lo;a dks fo|ky; esa dk;Zjr crkrs gq, vius osru Hkqxrku vkfn ds lEcU/k esa ,d fjV ;kfpdk la[;k&[email protected] ekuuh; mPp U;k;ky; bykgkckn esa nk;j dh Fkh] ftlesa ekuuh; mPp U;k;ky; us vius vkns'k fnukad 09-04-2012 ,oa la'kksf/kr vkns'k fnukad 24-04-2012 ds }kjk oknh ds ekeys dks nks ekg ds vUnj fuLrkfjr fd;s tkus ds vkns'k fn;s gSA eku0 mPp U;k;ky; bykgkckn ds vkns'k vuqikyu esa bl dk;kZy; }kjk mHk; i{kksa dks lquokbZ dk volj iznku fd;k x;kA

oknh us vius vkidks dk;Zjr crkrs gq, fuEu fooj.k fn;k gSA

1- oknh us vius in ls dksbZ R;kx i= ugh fn;kA

2- oknh dks iz/kkuk/;kid }kjk v/;kiu izek.k fn;k x;k gSA

3- oknh us LVkQ mifLFkfr iaftdk ekg vxLr 2001 ls ebZ 2003 rd dh Nk;k izfr;ka izLrqr dh gSA

4- Lo;a dks fo|ky; esa tkus ls izcU/kd }kjk jksds tkus ds fo"k; esa oknh }kjk iqfyl iz'kklu dks f'kdk;r dh x;hA

5- oknh dk ;g dFku dh fo|ky; esa mifLFkr LFkku ij uohu fu;qfDr fd;s tkus dh tkudkjh u gksukA

tgkW rd oknh dk ;g dFku gS fd mUgksus vius in ls R;kx i= ugh fn;k gS] lR; izrhr ugh gksrk D;ksafd oknh us viuk R;kx i= iz/kkuk/;kid ds gLrk{kj ;qDr izcU/kd dks Lohd`fr gsrq fn;kA ftls izcU/k dk;Zdkj.kh lfefr us viuh cSBd fnukad 08-08-2002 esa Lohd`r dj fn;k gSA

oknh dk dFku gS fd fo|ky; ds iz/kkuk/;kid }kjk mUgs fo|ky; esa v/;kiu dk izek.ki= fn;k x;k gS] tcfd iz/kkuk/;kid dk dFku gS fd mUgksus v/;kid dks bl izdkj dk dksbZ izek.k i= ugh fn;kA ;fn mUgksus dksbZ izek.k i= izLrqr fd;k gS og QthZ gSA

oknh us vius mifLFkfr izek.k ds fy, tks mifLFkfr iaftdk dh Nk;k izfr;ka izLrqr dh gS] mUgsa u rks iz/kkuk/;kid }kjk gh fn;k x;k gS] vkSj u izcU/kd }kjk gh fn;k x;k gSA ,slk izcU/kd o iz/kkuk/;kid dk dFku gSA ;s Nk;kizfr;ka izcU/[email protected]/kkuk/;kid }kjk izekf.kr ugh gSA bls izrhr gksrk gS fd oknh }kjk fdlh Hkh mfpr ek/;e ls mijksDr Nk;k izfr;ka izkIr ugh dh x;h gSA

oknh dk ;g Hkh dFku gS fd izcU/kd }kjk mUgs fo|ky; esa tkus ls jksds tkus ds fo"k; esa mUgksus ,d f'kdk;rh i= iqfyl iz'kklu dks fn;k FkkA ijUrq iqfyl foHkkx }kjk ;fn dksbZ dk;Zokgh buds i{k esa dh x;h gksrh rks mldh izekf.kr izfrfyfi iqf"V djus ds fy, vko';d Fkh tks muds }kjk izLrqr ugha dh x;h gSA

tgkW rd buds fjDr LFkku ij izcU/kd }kjk ubZ fu;qfDr fd;s tkus dk iz'u gS] rks bldk foKkiu lekpkj i= esa izdkf'kr djk;k x;kA vr% mldh tkudkjh budks fo|ky; }kjk nh tkuh vko';d ugh FkhA uohu fu;qfDr fu;ekuqlkj dh x;h gSA

ftl le; oknh dh fu;qfDr v/;kid ds in ij gqbZ Fkh ml le; fo|ky; vuqnku lwph ij ugh Fkk vkSj tSls gh fo|ky; ds vuqnku lwph ij vkus dh tkudkjh oknh dks gqbZ rks bUgksus vius vki dks fo|ky; esa dk;Zjr crkrs gq, osru Hkqxrku izkIr djus ds fy, og dk;Zokgh dh gSA ftldk dksbZ vk/kkj izrhr ugh gksrk D;ksafd v/;kid }kjk vius in ls R;kx i= fn;s tkus vkSj mls izcU/k lfefr }kjk Lohd`r fd;s tkus ij v/;kid lsokvksa esa ugh ekus tk;sxs bl fo"k; esa budks viuk i{k izLrqr djus ds fy;s bl dk;kZy; ls iathd`r i= }kjk mudks mifLFkr gksdj viuk i{k izLrqr djus dk volj iznku fd;k x;k Fkk] fdUrq ;s mifLFkfr ugh gq, vkSj u gh vius in ls R;kx i= fn;s tkus ls ;kfpdk nk;j djus rd dksbZ izR;kosnu bl dk;kZy; esa izLrqr ugh fd;kA fjV ;kfpdk esa ,usDlj la[;k&04 layXu fd;k x;k gSA tks bl dk;kZy; dks lEcksf/kr gS vkSj ftlesa bUgksus v/;kid ds in ij ekg flrEcj ls dk;Z djus nsus o osru dk Hkqxrku djkus ds lEcU/k esa izLrqr fd;k gS] fdUrq lquokbZ ds le; ;s mDr izR;kosnu dk;kZy; esa izLrqr fd;s tkus dk dksbZ izek.k izLrqr ugh dj ldsA

mijksDr foospuk ls Li"V gS fd oknh }kjk fo|ky; esa vius in ls R;kx i= fn;s tkus ds mijkUr dk;Zjr ugh jgs gS] vr% budk izR;kosnu cyghu o vk/kkjghu gS mls Lohdkj fd;k tkuk fu;ekuqlkj lEHko ugh gSA vr% izR;kosnu fnukad 10-05-2012 dks vLohdkj fd;k tkrk gSA

g0 viBuh;

¼iznhi dqekj½

ftyk csfld f'k{kk vf/kdkjh

cqyUn'kgj

27-7-12

8. Feeling aggrieved against the aforesaid order the petitioner has filed instant writ petition, wherein the order passed by District Basic Education Officer, Bulandshahar has been assailed on various grounds to be stated herein after.

9. Learned counsel for the petitioner has submitted that once the issue is concluded at higher forum it cannot be reagitated in remand proceeding and only that issue can be considered which has been remanded by higher forum and in support of his said submission he has referred two decisions of Apex Court, which shall be referred hereinafter at relevant place.

10. While elaborating his submission he argued that the order passed by the District Basic Education Officer runs contrary to the order dated 9.4.2012 passed by this Court, wherein this Court has specifically directed the District Basic Education Officer to decide the controversy as to whether the alleged resignation of the petitioner was voluntary resignation or it was manipulated and fabricated by the Principal/Head Master and Manager of the Institution​ but while deciding the said controversy District Basic Education Officer has not under taken fresh exercise according to law rather decided the issue on the basis of extraneous and irrelevant consideration and an earlier order passed by the then B.S.A. on 24.6.2005. He urged that since the petitioner has specifically denied his resignation and stated that the aforesaid resignation letter of the petitioner was forged and fabricated by the Head Master and Manager of the Institution, therefore, in wake of these facts and circumstances of the case, only course was open to the District Basic Education Officer to compare the signature of petitioner on alleged letter of resignation from his any admitted signature and decide the same as to whether signature of the petitioner on alleged resignation is genuine or forged and fabricated one but while deciding the aforesaid issue District Basic Education Officer has not done so instead thereof he has observed that since the petitioner had submitted his resignation to the Manager of the institution which was signed by Head Master of the institution and the Committee of Management had approved the same in its meeting dated 8.8.2002, therefore, the assertion of petitioner that he did not resign from his post appears to be incorrect. The aforesaid finding of B.S.A. is misconceived and contrary to law, therefore, is not sustainable in the eye of law.

11. Next submission of learned counsel for the petitioner is that the authenticity of photostat copies of attendance register submitted by the petitioner has been doubted by the District Basic Education Officer merely on the ground that it was not certified by Manager/Head Master of the institution, whereas while deciding the case earlier filed by the petitioner this court has specifically directed the District Basic Education Officer to decide the issue of working of the petitioner upto the year 2002-2003 after verifying the allegation of petitioner from staff attendance register of the institution for the year 2002-2003. But in utter disregard of the said direction even by taking the risk of contempt of court the B.S.A. has acted arbitrarily and rejected the assertion of the petitioner merely on the ground that photostat copies of attendance register were not certified by the Principal or Manager of the institution and were not obtained from lawful manner.

12. Another submission of learned counsel for the petitioner is that the teaching certificate given by the Head Master of the institution to the petitioner has been disbelieved merely on the ground that the aforesaid fact has been denied by Principal of the institution without verifying the signature of Head Master of the said institution.

13. Learned counsel for the petitioner has further submitted that the statement of petitioner to the effect that Manager of the institution has forcibly stopped the petitioner from working in the institution has been disbelieved merely on the ground that no record has been produced by the petitioner about any action taken by the police on the complaint made by the petitioner against the Head Master and Manager of the institution, whereas the petitioner could not be blamed for inaction of Police authorities on the said complaint of the petitioner.

14. Contrary to it, Sri B.P. Singh, learned counsel who is representing Sri Ravindra Kumar Sharma respondent no.4 and Sri Harish Chandra Ravi respondent no.5 has submitted that the petitioner has voluntarily resigned from service and thereafter after due advertisement of said vacancy the respondent no.4 was appointed on the post of Assistant Teacher and his appointment has also been duly approved by District Basic Education Officer on 15.7.2005 alongwith two other appointments and since then he is continuously working on the said post and getting his salary of the said post. Further submission of learned counsel for respondents is that since by the impugned order dated 27.7.2012 the District Basic Education Officer has recorded finding of fact, therefore, said finding of fact is not liable to be interfered with by this Court under Article 226 of the Constitution of India. In case the petitioner feels any grievance against the said finding of fact, it is open for him to challenge the same in civil suit.

15. Apart from it Sri Yatindra, Advocate appearing on behalf of District Basic Education Officer has tried to justify the impugned order dated 27.7.2012 passed by District Basic Education Officer, Bulandshahar on the basis of an observation made by the B.S.A. about an earlier order dated 24.6.2005 passed by B.S.A., contained in Annexure C.A.-6 of the counter affidavit filed by Sri Pradeep Kumar posted as District Basic Education Officer, Bulandshahar, whereby while granting permission for appointment of new teachers including at the place of the petitioner, he had cancelled the approval of appointment of the petitioner on the post of Assistant Teacher in the institution earlier accorded on 19.4.2001, on the allegation that the petitioner had not objected the proposal of management of the institution in respect of approval of resignation of the petitioner and permission for appointment of new teachers when he was asked for by the then B.S.A. Bulandshahar in the year 2005.

16. Thus, in view of the rival submissions of the learned counsel for the parties, a moot question arises for consideration of this Court that as to whether the alleged resignation of the petitioner from the post of Assistant Teacher dated 5.7.2002 is voluntary or it is fabricated and manipulated by the Principal and the Manager of the Institution?

17. In order to decide the aforesaid controversy, vide order dated 5.3.2013, this Court has directed the Registrar General of this Court, to seek expert opinion of Handwriting expert in respect of the signature of the petitioner-Yogendra Kumar procured on the alleged letter of resignation of the petitioner and his admitted signature by passing an order as under:

"In pursuance of earlier direction given by this Court today Sri Pradeep Kumar, District Basic Education Officer, Bulandshahar is present before the Court. He has filed a counter affidavit enclosing a copy of letter of petitioner dated 13.10.2006 addressed to the Deputy Inspector General of Police, Meerut Range, Meerut, which has been produced by the petitioner at the time of hearing of his representation before District Basic Education Officer, Bulandshahar. The aforesaid letter of the petitioner is on record as Annexure CA-7 at page 38-39 of the said counter affidavit. Besides the aforesaid letter of the petitioner he has also filed alleged resignation letter of petitioner dated 5.7.2002 as Annexure-CA-3 to the said counter affidavit. The alleged letter of resignation dated 5.7.2002 is enclosed by the petitioner in instant writ petition as Annexure-6 which was filed in counter affidavit filed by the petitioner District Basic Education Officer, Bulandshahar in Writ Petition No.63951 of 2006 earlier filed by the petitioner. The petitioner is also present before this Court and his counsel Sri N.L. Pandey has identified him. The petitioner has stated before this Court that neither the contents of alleged letter of resignation dated 5.7.2002 contained in Annexure CA-3 at page 26 is under his hand writing or signature nor the the alleged letter of resignation as filed in Annexure-6 of the writ petition at page 47 of the writ petition is under his hand writing or signature. Though he has admitted that he has made his signature on his letter dated 13.10.2006 addressed to the D.I.G. Meerut Range, Meerut as contained in Annexure-CA-7 of the counter affidavit filed by Sri Pradeep Kumar, District Basic Education Officer, Bulandshahar in instant writ petition. Therefore, the controversy as to whether he has signed his resignation letter dated 5.7.2002 addressed to the Manager of the institution is genuine resignation letter or it is fabricated by someone else i.e. Manager or Principal of the institution, can be resolved by seeking expert opinion from the handing writing expert in respect of signature of petitioner on the alleged resignation letter and his letter dated 13.10.2006 addressed to the D.I.G., Meerut Range, Meerut as contained in Annexure-CA-7 at page 38-39of the counter affidavit filed by Sri Pradeep Kumar, District Basic Education Officer,Bulandshahar.

The Registrar General is directed to seek expert opinion on the signature of the petitioner Yogendra Kumar available at page 39 of the counter affidavit filed by Sri Pradeep Kumar and his signature available on resignation letter dated 5.7.2002 at page 47 of the writ petition and page 26 of the counter affidavit filed by Sri Pradeep Kumar in instant writ petition. The expert shall also be asked to give his concluded opinion as to whether the signature of Yogendra Kumar available on the aforesaid papers is similar and tallied with each other or not and the same has been made by the same person or not.

The Registrar General is directed to seek the aforesaid expert opinion within 20 days from today and produce before the Court at the time of hearing of the writ petition when the case is listed next. It is also made clear that the Registrar General shall also realise the expenses of expert opinion from the office of District Basic Education Officer, Bulandshahar.

List on 08.04.2013. On that day, Sri Pradeep Kumar, District Basic Education Officer, Bulandshahar shall remain present before the Court."

18. Pursuant to the aforesaid direction, the Registrar General of this Court, has obtained opinion of Handwriting expert on the disputed signature of the petitioner alleged to be made on the resignation letter of the petitioner dated 5.7.2002 and also on the admitted signature of the petitioner and submitted before this Court in sealed cover which has been opened in the Court. And after perusal of the said report, same has been again kept in sealed cover and made part of the record.

19. Learned counsel appearing for B.S.A. and Shri B.P. Singh, learned counsel for the respondent nos. 4 and 5 did not file any objection against opinion of Handwriting Expert which is obtained by the Registrar General in pursuance of the direction of this court, rather Sri B.P. Singh, Advocate has also sought parallel expert opinion of Handwriting Expert upon the disputed signature of the petitioner on the letter of resignation dated 5.7.2002 and his admitted signature from one Shri Ashish Chaudhary without seeking any permission from this Court at his sweet will and placed on record. According to the said expert opinion the signature made at place Q-I and Q-II is of the same person, who has made signature at the place A-I and A-II. Since this expert opinion has been procured by the Manager of the institution without any prior permission of the court, therefore, it is very difficult for this court to accept the same.

20. According to the expert opinion obtained by Registrar General, the photo stat copy of the signature of person indicated at place A-1 and A-II of the report does not tally with the photostat signature made at place Q-1 and Q-II in the said report. This means that the person who has made signature as indicated at place A-1 and A-II has not made signature at place Q-I and Q-II. It is not in dispute that the signature made at place A-1 and A-II is admitted signature of the petitioner and signature made on the alleged letter of resignation dated 5.7.2002 at place Q-I and Q-II has been denied and is disputed by him. Thus, according to the expert opinion, the alleged signature of the petitioner on the letter of resignation dated 5.7.2002 accepted by the Principal and the Manager of the Institution does not tally with the admitted signature of the petitioner, therefore, I have no hesitation to hold that the signature of the petitioner made on the alleged letter of his resignation dated 5.7.2002 is not genuine signature of the petitioner. rather Head Master and Manager of the institution had fabricated the aforesaid signature of the petitioner on his alleged resignation letter dated 5.7.2002, accordingly said resignation cannot be held to be the voluntary resignation of the petitioner and further in view of the aforesaid discussions there is no scope for doubt to hold that the story of resignation of the petitioner dated 5.7.2002 to the Principal and Manager of the Institution set-up by the respondents, does not appear to be correct and genuine story, therefore, has to be rejected.

21. Submission of Sri Yatindra, learned counsel appearing on behalf of District Basic Education Officer, Bulandshahar that since the petitioner had not objected the proposal of Management of the institution in respect of approval of his resignation and permission for appointment of new teachers when he was asked for by the District Basic Education Officer, Bulandshahar in the year 2005, failing which order was passed by him on 24.6.2005 contained in Annexure-C.A. 6 of the counter affidavit filed by Sri Pradeep Kumar, District Basic Education Officer, Bulandshahar whereby the approval of appointment of the petitioner on the post of Assistant Teacher earlier granted on 19.4.2001 had also been cancelled and permission for making fresh recruitment against consequential vacancy was given by him appears to be misconceived and misplaced for the simple reason that once this Court vide order dated 9.4.2012 and 24.4.2012 passed in writ petition earlier filed by the petitioner had specifically directed the District Basic Education Officer to decide the issue as to whether the alleged resignation of the petitioner dated 5.7.2002 was his voluntary resignation from the post of Assistant Teacher or it was manipulated and fabricated by the Headmaster or Manager of the institution, in such event of the matter the alleged resignation of the petitioner dated 5.7.2002 could not be justified by the District Basic Education Officer on the basis of earlier order dated 24.6. 2005 passed by the then District Basic Education Officer, whereby while granting permission for appointment of new teachers the District Basic Education Officer had also cancelled the approval of appointment of the petitioner as Assistant Teacher in the institution earlier accorded on 19.4.2001. Although the petitioner has denied the receipt of any letter of the B.S.A. in respect of the said proposal of the manager of the institution. In my considered opinion, in given facts and circumstances of the case, in the light of the aforesaid direction given by this court, only course was open to the B.S.A. to compare signature of the petitioner allegedly made on resignation letter dated 5.7.2002 from any admitted signature of the petitioner by seeking expert opinion thereon and arrive at his conclusion as done by this court herein before but the impugned order dated 27.7.2012 was passed by the B.S.A. without under taking any such exercise required by the court, therefore, in my considered opinion, the imugned order could not be justified from the order dated 24.6.2005 earlier passed by B.S.A..

22. In this connection, it is to be noted that since the Manager of the institution had merely proposed for grant of approval of alleged resignation of the petitioner dated 5.7.2002 and permission for making fresh appointment against consequential vacancy of Assistant Teacher, therefore, in my considered opinion, it was not open for the District Basic Education Officer to cancel the approval of appointment of the petitioner dated 19.4.2001 earlier accorded by the District Basic Education Officer, Bulandshahar for the simple reason that petitioner's appointment on the said post and approval of his appointment dated 19.4.2001 was never in dispute. I am of the view that the order dated 24.6.2005 passed by the then B.S.A., Bulandshahr appears to be actuated by extraneous and irrelevant consideration in as much as motivated by corrupt practice.

23. This corrupt practice of the then District Basic Education Officer is again reflected from the recital of the order dated 24.6.2005, whereby while communicating his order dated 24.6.2005 to the Manager of the institution the District Basic Education Officer went on giving heading to the subject matter of his order/letter as also cancellation of approval of appointment of the petitioner, which was neither sought by the Manager of the institution nor was in dispute before B.S.A. nor there was any such decision for Manager of the institution to seek cancellation of approval of appointment of the petitioner accorded on 19.4.2001. Therefore, the aforesaid order dated 24.6.2005 passed by the District Basic Education Officer, Bulandshahar, in my opinion, was also influenced by the Committee of Management of the institution and procured from the then District Basic Education Officer, Bulandshahar by adopting a corrupt practice.

24. Next submission of the learned counsel for the petitioner that while deciding the issue of continuous working of the petitioner as Assistant Teacher in the institution, District Basic Education Officer has again acted contrary to the direction given by this court vide judgement and order dated 9.4.2012 appears to be correct for the reason that the photostat copies of staff-attendance register of the institution pertaining to years 2002-2003 submitted by the petitioner were rejected merely on the ground that said photostat copies were not certified by the Head Master or Manager of the institution and were not obtained by lawful manner, without examining and verifying from original staff attendance register of the institution for said period, whereas since Head Master and Manager of the institution were opposing the aforesaid claim of the petitioner right from beginning, therefore, keeping the aforesaid stand of the Head Master and/or Management of the institution in mind and their hostility with the petitioner, this court has directed the B.S.A. to decide the issue of continuance of the petitioner in the institution upto 2003 by examining the staff attendance register of the institution but inspite of said direction B.S.A. did not examine the original staff attendance register of the institution for the said period and wrongly rejected the claim of the petitioner set up before him and also before this court under the pretext that said copies were not certified by the Headmaster and/or Manager of the institution and were not obtained by lawful manner.

25. At this juncture, it is also to be noted that only that issue can be considered in remand proceeding upon which the matter had been remanded by the higher court or authority and cannot be re-agitated again in such remand proceeding as held by Apex Court in Radha Raman Samant Vs. Bank of India and others (2004) 1 S.C.C. 605 and in Bharat & Company Vs. Trade Tax Officer and Another (2005) 6 S.C.C. 796. Therefore, once this Court by remanding the matter has directed the District Basic Education Officer to decide the aforesaid issue by verification of Staff Attendance Register of the institution, in that event of the matter the District Basic Education Officer was bound to verify original Staff Attendance Register of the institution for the said period and could not reject the statement of the petitioner on one pretext and another on the aforesaid ground knowing that Headmaster and Manager of the institution are opposing the claim of the petitioner and would not give certified copy of Staff Attendance Register to the petitioner. Thus, aforesaid approach of District Basic Education Officer, in my considered opinion, is not merely illegal rather contemptuous and contrary to the direction of this court and actuated by extraneous and irrelevant consideration and corrupt motive.

26. Next submission of learned counsel for the petitioner that teaching certificate given by the Head Master of the institution to the petitioner, has been disbelieved merely on the ground that the aforesaid fact has been denied by the Head Master of the institution without verifying the signature of Head Master of the institution, appears to be correct for the simple reason that once the teaching certificate submitted by the petitioner in support of his claim before the Basic Shikchha Adhikari/ District Basic Education Officer, was disputed by the Principal/head Master of the institution, the signature made on the said certificate, ought to have been verified/compared from any admitted signature of the Head Master of the institution and in my opinion it could not have been rejected merely on denial of the Head Master of the said institution but since B.S.A. was adamant to reject the claim of the petitioner on one pretext and another, therefore, he has not undertaken such exercise.

27. Last submission of the learned counsel for the petitioner that the statement of the petitioner to the effect that the Manager of the institution, had restrained the petitioner from working in the institution and from signing staff attendance register of the institution, has been disbelieved merely on the ground that no record has been produced by the petitioner about any action taken by the police on the complaint made by the petitioner against the Head Master and Manager of the Institution. Whereas in my opinion, the petitioner could not be blamed for any inaction of police on the said complaint of the petitioner for the simple reason that if the petitioner had made a complaint against aforesaid action of the Head Master and the Manager of the institution to the police authorities, the statement of fact should have been verified by the District Basic Education Officer from record of the concerned police station where he had made complaint against Head Master or the Manager of the institution. The said statement about making a complaint could not be disbelieved merely on the ground that the petitioner could not produce any material before the District Basic Education Officer about any action taken by the police authorities on the said complaint.

28. In this connection, it is to be noted that it is a common knowledge and common phenomenon that once a poor/weak party approaches the police against stronger party or man of high profile like a manager of the institution, the high profile men are able to manage the police authorities against such complaint, as such, the aforesaid statement of the petitioner, in my opinion, could not have been disbelieved by the District Basic Education Officer without verifying the alleged complaint from the record of the police station concerned. But as revealed from various observations made in the impugned order, discussed hereinbefore, the District Basic Education Officer was adamant to reject the claim of the petitioner on one pretext and another, even by taking risk of contempt of court on account of extraneous and irrelevant considerations and corrupt practice.

29. In view of the aforesaid discussion and from attending circumstances it is clear that the petitioner has not resigned from the post of Asstt. teacher of said institution voluntarily instead thereof his alleged resignation dated 5.7.2002 was fabricated by the then Head Master and Manager of the institution. It appears that the petitioner was continuously working on the said post from the date of his appointment till 2003, thereafter he was forcibly prevented by the Manager of the institution from signing staff attendance register and from working on his post. Therefore, in my considered opinion, he is entitled to be treated to be continued in service from the date of his appointment till the date by ignoring his alleged resignation dated 5.7.2002. Thus, he is further entitled for other consequential benefits of service including seniority, regular increments in the salary as revised from time to time on the said post. However, the actual payment of his salary shall be made as to be directed hereinafter.

30. Since the petitioner's services were illegally terminated by the Management of the institution by fabricating false document of his resignation and wrongly prevented him from working on his post, therefore, in my considered opinion, principle of no work no pay shall not apply in case of the petitioner and he will be entitled for his full salary alongwith admissible allowances on the post in question from the date of termination of his services till the date, but since respondent no. 4 has already received the salary from the state exchequer and two persons should not be paid salary against one sanctioned post, therefore, the Management of the institution is directed to make payment of arrears of 50% salary to the petitioner from its own resources. The said arrears of salary shall be paid to the petitioner within two months from the date of production of certified copy of this order before the Manager of the institution and B.S.A. Bulandshahar, who shall further ensure the aforesaid payment to the petitioner from the resources of the management of the institution failing which B.S.A. shall take action against the management of the institution available under law. However, for the purpose of post retiral benefits full salary shall be treated to have been paid to the petitioner from the date of his appointment till the date and respondents are directed to pay full current salary to the petitioner as and when becomes due to him.

31. In view of the aforesaid discussion, the impugned order dated 27.7.2012 passed by District Basic Education Officer, Bulandshahar cannot be sustained and is liable to be quashed, but the same should not be merely quashed rather appropriate action should also be taken against the District Basic Education Officer, Bulandshahr who has passed the impugned order dated 27.7.2012 in utter disregard of the order passed by this court on the basis of extraneous and irrelevant consideration and corrupt practice. Accordingly, the impugned order dated 27.7.2012 passed by the District Basic Education Officer, Bulandshahr, rejecting the representation of the petitioner, is hereby quashed. The petitioner will be reinstated in service within a month from the date of production of this order before B.S.A. Bulandshahr and Manager of the institution. The services of respondent no.4 as Asstt. teacher against consequential vacancy of the petitioner shall stand terminated and his appointment and approval shall also stand cancelled forth with, consequently he will not be paid any salary from State exchequer. However, the salary paid to the respondent no. 4 from State exchequer during the period he has worked as Asstt. teacher in the said institution shall not be recovered from him and in case there exist any other vacancy in the institution, respondent no.4 shall be adjusted against said vacancy or future vacancy without undertaking any fresh selection.

32. In view of aforesaid discussion, I am of the considered opinion that Sri Pradeep Kumar, B.S.A. Bulandshahar has not merely committed illegalities in deciding the representation of petitioner in pursuance of direction given by this court but the manner in which he has decided said representation it appears that he has no respect and regard of this court and direction given by this court and decided the said representation of petitioner on the basis of extraneous and irrelevant consideration and corrupt motive. Therefore, before parting with the judgement, I am constrained to record my displeasure about the work and conduct of Sri Pradeep Kumar, the then District Basic Education Officer, Bulandshahr, who has passed impugned order dated 27.7.2012.

33. Now-a-days it is public perception and perception of this court also that rampant corruption in public life and administration has shaken faith and confidence of people and this court in public administration, Because of such officers the image of the Government is also tarnished, therefore, instead of remitting the matter back to the authorities for taking appropriate action against Sri Pradeep Kumar, this court itself undertakes such exercise.

34. Since I have already summoned the District Basic Education Officer, Bulandshahr namely Sri Pradeep Kumar, who has decided the said representation of petitioner, before the court and also heard him in justification of impugned action taken by him alongwith his counsel, therefore, I do not think to give any show cause notice again to him before taking any action against him. Accordingly, by taking the lenient view in the matter in the wake of facts and circumstances of the case, I direct the State Government to withhold one annual increment of Sri Pradeep Kumar, the then District Basic Education Officer, Bulandshahr and record an adverse remarks in his character roll and annual confidential remarks in respect of the year 2013-14 with a warning that he should be careful in future while dealing with the cases like present one.

35. Secretary, Basic Education, Government of Uttar Pradesh and Director, Basic Education, Uttar Pradesh, or whosoever be competent authority, is directed to transfer Sri Pradeep Kumar, B.S.A. Bulandshahar forthwith from District Bulandshahar to any smaller district like Mahoba, Hamirpur, Shrawasti, Balrampur, Lakheempur, Lalitpur, Jalaun etc. He shall be directed to work in aforesaid small districts atleast for a minimum period of three years as in my considered opinion, he does not deserve to man the post of B.S.A. of big districts where he is required to deal with numerous cases like present one.

36. Although I am also constrained to express my displeasure about the action of Committee of Management of the institution while dealing with the case of petitioner but in order to give quietus to the litigation, I do not propose any action against the then Manager of the institution.

37. With the aforesaid observations and direction, writ petition succeeds and is allowed.

The Registrar General, High Court, Allahabad is directed to communicate this judgement to the Secretary, Basic Education, Government of Uttar Pradesh and Director, Basic Education, Uttar Pradesh by 10th October, 2013, who shall thereupon pass appropriate order as directed by this court herein above forthwith.

Certified copy of this order shall also be given to the learned Standing Counsel free of cost by 10th October, 2013 for communication and necessary action.

Date:13.9.2013

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