Awadhesh Kumar vs State Of ...
2021 Latest Caselaw 10816 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 7
 
Case :- SERVICE SINGLE No. - 29498 of 2018
 
Petitioner :- Awadhesh Kumar
 
Respondent :- State Of U.P.Thru.Prin.Secy.Secondary Education Lko.& Ors.
 
Counsel for Petitioner :- Dharm Raj Misra
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri D.R. Misra, learned counsel for the petitioner and Sri Vinod Kumar Shukla, learned Standing Counsel for the State-respondents.

Despite the notice being issued to the opposite party No.5 i.e. the Committee of Management of the Institution and despite the unserved envelope has not been received in the office, as per the office report dated 10.12.2018, no one has put in appearance for opposite party No.5. Even otherwise the opposite party No.5 is a proforma party and considering the request of the writ petition, I hereby dispose of this writ petition at the admission stage without causing any prejudice to the opposite party No.5.

The prayers of this writ petition are as under:-

"(i) to issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to treat earlier services of the petitioner for the purpose of pay fixation and for granting the benefit of selection grade, the petitioner may also be given benefit of the same after retirement with all consequential benefits.

(ii) to issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to consider and grant the seniority from the date juniors to the petitioner have been given the benefit of seniority, treating the absorption in April 2007.

(iii) to issue a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to consider the case of the petitioner for promotion on he post of Lecturer (English) and promote the petitioner on the post of Lecturer (English)."

Sri D.R. Misra, learned counsel for the petitioner has submitted that the petitioner was selected by the Selection Committee on the post of Subject Expert on 30.09.2000 and he submitted his joining 10.10.2000. However, vide order dated 21.01.2001 the appointment of the petitioner was cancelled by the opposite party No.3, so feeling aggrieved out of the order dated 21.01.2001 the petitioner filed a writ petition bearing Writ-A No.10448 of 2001 before this Court at Allahabad and vide judgment and order dated 09.03.2010 the cancellation order was set aside and the direction was issued for constitution of a Scrutiny Committee in respect of the selection in question. The operative portion of the judgment and order dated 09.03.2010 is as under:-

"In view of the aforesaid, this Court holds that mass cancellation of the selection held in pursuance to the advertisement dated 12.12.1999 cannot be legally sustained, more so when the persons like the petitioner had already been appointed and they had joined in pursuance to the selection so held. The writ petition is, therefore, allowed. The order of the State Government is hereby set aside.

Let the State Government constitute a Scrutiny Committee in respect of the selection in question, for segregating the good part from bad part, after examination of the records of each of the selected candidate separately. The aforesaid exercise may be completed within four months from the date a certified copy of this order is filed before the respondent no. 1.

Writ petition is disposed of."

When no appropriate orders have been passed by the authority concerned in compliance of the judgment and order dated 09.03.2010, the petitioner filed a contempt petition bearing Contempt Case No.4006 (C) of 2010 and on order passed by the Hon'ble Contempt Court dated 22.07.2011 the State Government has issued an order dated 22.11.2011 (Annexure No.5) making compliance of the judgment and order 09.03.2010.

As per Sri Misra, learned counsel for the petitioner, the opposite party No.4 issued a letter dated 21.02.2012 and granted permission for continuation of the petitioner on the post in question on notional basis. Pursuant to the letter dated 21.02.2012, the opposite party No.5 issued a letter dated 23.02.2012 to the petitioner for joining in the Institution whereby the petitioner submitted his joining on 27.02.2012.

Since appropriate service benefits have not been paid to the petitioner, therefore, the petitioner preferred representation dated 18.04.2012 to the opposite party No.2 making request that he be paid all consequential service benefits in compliance of order of this Court as well as in view of the settled proposition of law. When no suitable order has been passed on the representation of the petitioner, the petitioner had filed writ petition bearing Writ-A No.23170 of 2012 before this Court at Allahabad, which was disposed of finally vide judgment and order dated 11.05.2012 with the direction to the Competent Authority to pass appropriate order on the representation of the petitioner, strictly in accordance with law.

As per Sir Misra, in compliance of the aforesaid order dated 11.05.2012 the opposite party No.2 decided the representation of the petitioner vide order dated 01.08.2012 (Annexure No.10).

As per Sri Misra, learned counsel for the petitioner, the petitioner was not feeling aggrieved out of order dated 01.08.2012, therefore, he did not challenge the said order before any court of law or at anywhere. Precisely, this order dated 01.08.2012 provides that the petitioner would be paid his appropriate service benefits by the District Inspector of Schools, Unnao, as per law. Not only the above, the letter dated 08.08.2012 has been issued by the opposite party No.3 to the opposite party No.4 asking to issue direction to the opposite party No.5 for issuing appointment letter against the vacant post for the petitioner. The petitioner submitted application before the opposite parties on 27.01.2018 making request that he be paid appropriate service benefits including the seniority with effect from the date such benefits have been extended to the juniors to the petitioner.

As per learned counsel for the petitioner, till date, no appropriate decision has been taken on the issue in question.

However, Sri Vinod Kumar Shukla, learned Standing Counsel has submitted that since the petitioner has been absorbed on the post of Assistant Teacher (English) LT Grade on 16.08.2012 from the Subject Experts, as such, the substantive date for appointment of the petitioner on the post of Assistant Teacher (English) LT Grade is 16.08.2012. Therefore, the petitioner is entitled for all the service benefits with effect from that date.

On that, Sri D.R. Misra, learned counsel for the petitioner has submitted that in a similar circumstances, the opposite parties have provided the benefits to the juniors to the petitioner, therefore, he is making an innocuous request that the petitioner be provided only those benefits which have been provided to the similarly placed juniors to the petitioiner and such benefits could have been provided him on notional basis. Sri Misra has also submitted that in view of the amendment being made in a particular Section 21-E of U.P. Secondary Education Service Selection Board Act, 1982 the petitioner should have been paid the service benefits which have been paid to the juniors to the petitioner.

Be that at it may, since no order has been passed by the concerning authorities on the request, for which the prayer have been made in the writ petition, therefore, the liberty is given to the petitioner to prefer a fresh representation to the opposite party No.2 taking all pleas and grounds which are available with him annexing therewith the copies of all relevant documents in support of his claim, which are necessary for disposal of the representation within a period of ten days and if such representation is preferred by the petitioner within the aforesaid stipulated time, the opposite party No.2 i.e. the Director of Secondary Education, Uttar Pradesh, Lucknow shall pass appropriate order, strictly in accordance with law by a speaking and reasoned order with expedition, preferably within a period of three months from the date of presentation of a certified / computerized copy of this order along with representation and the decision thereof shall be intimated to the petitioner forthwith.

It is made clear that I have not entered into merits of the issued and have recorded the submissions of both the sides, therefore, the Competent Authority shall not be influenced from any of the observations, so made in this order, but at the same time it is legitimately expected that while passing appropriate order in terms of order of this Court, the relevant facts shall be considered carefully to the effect that whether the benefits so prayed by the petitioner in the writ petition have already been paid to the similarly and identically placed persons even the juniors to the petitioner and if such benefits have been paid to them, then why such benefits cannot be extended to the petitioner, the specific reason shall be assigned for not making such benefits to the petitioner.

In view of the aforesaid observations and directions, the instant writ petition is disposed of finally.

Order Date :- 25.8.2021

Suresh/

[Rajesh Singh Chauhan,J.]