Ram Akbal Bahadur Singh And 3 Ors. vs State Of U.P. Thru Prin.Secy. ...
2019 Latest Caselaw 1601 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 23
 

 
Case :- SERVICE SINGLE No. - 3765 of 2019
 

 
Petitioner :- Ram Akbal Bahadur Singh And 3 Ors.
 
Respondent :- State Of U.P. Thru Prin.Secy. Secondary Edu. Lucknow And Ors
 
Counsel for Petitioner :- Ravi Singh
 
Counsel for Respondent :- C.S.C.,Ajai Pratap Singh,Pratibha Singh
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard learned counsel for the parties.

This Court has passed the order dated 11.02.2019 as under:-

"Heard Sri Ravi Singh, learned counsel for the petitioners, Sri Pradeep Kumar Singh, learned counsel for the opposite party Nos. 1 to 4 and Sri Ajay Pratap singh, learned counsel for the opposite party No. 5, who has filed his vakalatnama which is taken on record.

By means of the present writ petition, the petitioners have challenged the orders dated 18.08.2018 and 28.08.2018 whereby, the petitioners, who were initially appointed between the period August 1984 to July 1986, as mentioned in para 3 of the writ petition, on the post of Assistant Teacher in Acharya Diwedi Inter College, Raebareli, have been adjusted in the institutions in the Lucknow Division and the said institutions are not situated in District Raebareli.

The submission of learned counsel for the petitioners is that the petitioners were initially appointed on the post of Assistant Teacher in Acharya Diwedi Inter College, Raebareli and regularized by the Committee of Management and for the purposes of payment of salary, they approached this Court by means of the writ petition No. 5251 (S/S) of 1999 and the same had been allowed in favour of the petitioners vide judgment and order dated 03.05.2002, wherein, the the Hon'ble Court issued the direction to the State/Respondents to release the payment of salary in favour of the petitioners from the year 1999. The judgment dated 03.05.2002was challenged by the State in Special Appeal No. 251 of 2002 and the said Special Appeal was dismissed vide judgment and order dated 18.11.2002. Being aggrieved by the judgment and order dated 18.11.2002 passed in Special Appeal No. 251 of 2002, the State preferred a Special Leave Petition No. 1399 of 2003 which was dismissed by the Hon'ble Apex Court vide judgment and order dated 31.03.2003. After dismissal of the S.L.P., the official opposite parties passed the order for releasing the salary in favour of the petitioners.

It has also been pointed out by learned counsel for the petitioners that there is a series of litigation between the Committee of Management as well as the petitioners and the writ petition is related with the recognition of the primary section attached to opposite party No. 5.

Learned counsel for the petitioner has further submitted that the recognition has withdrawn and withdrawal of the recognition was challenged before this Court in Writ Petition No. 2602 (M/S) of 2004 and this Court stayed the operation of the order of withdrawal of the recognition dated 17.05.2004.

On query being made, it has also been informed that the said writ petition is pending disposal.

While assailing the orders under challenge, the submission of learned counsel for the petitioner, on the basis of the pleadings on record, is to the effect that the State has no authority to adjust or absorb the regular employees/Assistant Teachers of Acharya Diwedi Inter College, Raebareli to other institutions in different Districts and there is no rule to the same effect and it has also been contended that the order, in view of the series of litigation, has been passed just to harass the petitioners.

Per contra, learned counsel for the State has informed that the order under challenge dated 18.08.2018 is consequential order as the same is based on the order dated 3rd August, 2018 and the same ought to have been challenged and in absence of challenging the same and challenging only the consequential order, writ petition is not maintainable.

It has also been informed by learned counsel for opposite party No. 5 that the writ petition No. 2602 (M/S) of 2004, in fact, has been dismissed for non-prosecution and application for restoration of the same is pending disposal. Learned counsel for the opposite party No. 5 has further submitted that the primary section in the institution, in issue, has been closed and due to the said fact 21 Teachers of the primary section have already joined other institutions by means of similar orders and the petitioners are resisting the absorption/adjustment.

Considering the entire issue in hand, the opposite party Nos. 1 to 4 are directed to file a short counter affidavit within two weeks specifically indicating therein the power/Authority and reasons for passing the orders under challenge. In the counter affidavit the opposite parties shall also indicate that whether the primary section attached to the institution of opposite party No. 5 is still in existence or not and whether the other teachers, who were imparting the education in the primary section attached to the institution, have already joined in other institutions where they have been adjusted/absorbed.

List this case as fresh immediately after expiry of two weeks.

Application for interim relief would be considered on the next date of listing.In compliance of the aforesaid order, the learned Standing Counsel has filed the short counter affidavit."

In compliance of the aforesaid order, the learned Standing Counsel has filed the short counter affidavit.

Sri Ravi Singh, learned counsel for the petitioners has filed rejoinder affidavit to the short counter affidavit, the same is taken on record.

Since the matter requires final disposal, therefore, a detailed counter affidavit is required to be filed by the opposite parties.

The submission of learned counsel for the petitioners is that the petitioners have been discharging their duties since 1984, 1985, 1986 and 1988 respectively and have been getting their salary. However, pursuant to the impugned order the petitioners are being shifted to another Institution.

Sri Ran Vijay Singh, learned Additional Chief Standing Counsel has drawn attention of this Court towards para-8 of the short counter affidavit wherein it has been indicated that in the year 2003 the Management of the Institution in question surrendered the recognition of Primary Section before the Secretary, U.P. Basic Education Board, Allahabad for the reason that there was an audit report to the effect that the teachers working in the Primary Section were being paid their salary without any teaching work being performed by them as there were no students admitted in the Primary Section of the Institution in question and the request of surrendering the recognition was accepted by the Secretary, U.P. Basic Education Board, Allahabad on 17.05.2004 (Annexure No.14 to the writ petition). It has also been informed that other teachers of the Institution have also been shifted to another Institution for the aforesaid reason.

During the course of hearing, the counsel for the Authorized Controller of the Committee of Management, Sri Ajay Pratap Singh, could not demonstrate the reasons as to why the students were not admitted in the Institution with effect from the year 2003 and despite this fact, the teachers are being paid salary.

Sri Ravi Singh, learned counsel for the petitioners has drawn attention of this Court towards Annexure No.20 of the writ petition, which is a representation of the petitioners dated 13.11.2018 preferred to the Minister of the Department wherein the Minister concerned has categorically directed that the issue in question be inquired.

Learned counsel for the State-respondents has stated that he has no instructions presently as to whether any inquiry has been conducted in the matter in compliance of order of the Minister of the Department.

The present issue is a serious issue wherein the teachers are being paid salary without any teaching work being available in the Institution in question and if this fact is correct, the responsibility must have been fastened on the erring officer.

Be that as it may, since a detailed counter affidavit is required in the matter, therefore, learned Additional Chief Standing Counsel is granted a week's time to file the counter affidavit. Sri Ajay Pratap Singh, learned counsel for the Authorized Controller of the Institution shall also file his counter affidavit within the aforesaid period of one week. Rejoinder affidavit, if any, may be filed within a week thereafter.

List this petition on 08.04.2019 within top ten cases.

The application for interim relief of the petitioners shall be considered on the next date. However, in the meantime, if any action is taken against the petitioners, the same shall be subject to further orders of this Court.

Order Date :- 26.3.2019

Suresh/

[Rajesh Singh Chauhan,J.]