Pramod Kumar vs State Of U.P. And 3 Others
2021 Latest Caselaw 7920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6
 

 
Case :- WRIT - A No. - 8234 of 2020
 

 
Petitioner :- Pramod Kumar
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Ashok Kumar Singh,Pratibha Singh,Radha Kant Ojha (Senior Adv)
 
Counsel for Respondent :- C.S.C.,Ashish Mohan Srivastava
 
Connected with 
 
Case :- WRIT - A No. - 1981 of 2021
 

 
Petitioner :- Pramod Kumar
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Ashok Kumar Singh,Pratibha Singh
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Pankaj Bhatia,J.

Heard Shri R.K. Ojha, learned Senior Advocate assisted by Shri Ashok Kumar and Ms. Pratibha Singh, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Ashish Mohan Srivastava, learned counsel for the respondent no. 4.

The present order decides both the above writ petitions filed by the petitioner.

The present writ petition has been filed by the petitioner claiming that a short term vacancy arose to the post of Assistant Teacher in LT Grade on account of promotion of one Virendra Singh to the post of Lecturer and after advertisement, the petitioner was selected by the Committee of Management and the papers were forwarded for approving the appointment of the petitioner. It is also stated that the petitioner was permitted to work from 28.10.1996 in terms of the appointment letter issued by the Manager of the Committee of Management. He argues that the request for approval was refused on 12.3.1997 by the DIOS, Bulandshahar.

The petitioner approached this Court by filing a writ petition being Writ Petition No. 13181 of 1997, which was entertained by this Court and an interim order was passed by this Court, which is quoted hereinbelow:-

"Heard the learned counsels for the parties afresh. Perused the case report in (1995) 3 UPLPEC 1387. The Division Bench ruled in this case that an order imposing temporary ban on appointment/recruitment on temporary or adhoc basis, of a lecturer, was not arbitrary, nor did it affect Article 14 of the Constitution or the provisions of the U.P. Secondary Education Services Commissions and Selection Board, Act, 1982. The appointment of the petitioner has not been approved on the sole ground of ban against appointment, as per annexure-8 to the petitioner. It has been interpreted by this court in the case reported in (1986) 2 UPlBEC at page 783 that such ban was for substantive vacancy only and not for a short term vacancy. Materials have been brought on record to suggest that the vacancy, against which the petitioner was appointed, was caused due to adhoc promotion of Sri Virendra Singh Sharma.

In view of the above, subject to any fact to the contrary through a Counter Affidavit that the Vacancy in question was a substantive one, the impugned order shall not be operative and respondent No.2 shall approve the appointment of the petitioner.

Counter affidavit by all respondents may be given in a month and a rejoinder affidavit, if any, in a week thereafter. Respondent No. 3 be also noticed.

List it on 08.07.1997 for hearing."

It is further argued that subsequent to the order dated 30th April, 1997, a specific order dated 21.1.2000 was also passed giving directions for payment of salary. It is argued that since the salary was not paid, the petitioner approached this Court by filing a contempt petition, wherein orders were passed for payment of the arrears of the salary and in fact reliance has been placed on the order dated 23.4.2003 passed in Contempt Petition No. 104 of 2001, wherein it was recorded that salary for the month of February, 2003 has been paid and request was made for time for making payment of arrears of salary and on the said request, one month's time was granted for payment of the salary.

It is further on record that in terms of the directions passed by this Court on 21.1.2000 in Writ Petition No. 13181 of 1997, the DIOS had passed an order dated 22.3.2003 approving the payment of salary to the petitioner. It is further argued that on 12.4.2003, a specific order was passed for approval of payment of salary to the petitioner for the period 28.10.1998 to 31.1.2003 amounting to Rs. 5,31,826/-.

The petitioner argues that Writ Petition No. 13181 of 1997 came to be dismissed in default on account of non appearance on 1.2.2018. The petitioner filed a restoration application seeking recall of the order dated 1.2.2018, which was recalled vide order dated 14.9.2018 and on the same date, the writ petition was heard on merits and in fact it was allowed by judgment dated 14.9.2018 (Annexure-12 to the writ petition). The operative part of the judgment dated 14.9.2018 is as under:-

"5. Learned Standing Counsel could not dispute that issue raised in the present case is squarely covered by aforesaid Division Bench judgment in Mukesh Kumar Vs. State of U.P. and others (supra). In view thereof, for the reasons stated in Mukesh Kumar Vs. State of U.P. and others (supra) and Sanjay Kumar Vs. Director of Education and others (supra), writ petition is allowed. Impugned order dated 12.03.1997 (Annexure-1 to the writ petition) is hereby set aside.

6. Respondent-2 is directed to re-consider the matter and pass a reasoned order in accordance with law within two months from the date of production of certified copy of this order before him."

In terms of the said order and the reasoning contained therein, the case of the petitioner was to be considered for regularization under the mandate of Section 33-G of the U.P. Secondary Education (Service Selection Board) Act, 1982. The petitioner claims to have applied, which led to passing of the order impugned in the present writ petition being the order dated 25.1.2020, whereby the claim of the petitioner was rejected.

I have perused the said order, which is on record as Annexure No. 17. A perusal of the said order shows that the benefit of regularization was denied to the petitioner on the ground that a report was given on 21.12.2019 to the effect that in terms of the another report of the management of the Principal, the petitioner was not paid salary for the period 28.10.1996 to February, 2003 and 1.4.2018 to 5.12.2018 and thus the claim cannot be considered. The said report was a sole ground for rejecting the claim of the petitioner for regularization.

Shri R.K. Ojha, learned Senior Advocate appearing on behalf of petitioner, argues that in terms of the mandate of Section 33-G of the Act, the case of the petitioner has to be considered and if he found eligible, he should be granted the benefit. There is no such provision prescribed under Section 33-G, which enable the respondents to deny the benefit of regularization only on account of non-payment of salary for a particular period. He further argues that even otherwise the said reasoning is incorrect as directions were issued for payment of arrears of salary, which is on record.

He further argues that even assuming, for the sake of argument, that the salary was not paid for the period indicated in the impugned order, the same fault cannot be attributed to the petitioner in view of the judgment of this Court passed in Writ Petition No. 13181 of 1997.

Thus, in sum and substance, the argument is that the case of the petitioner for regularization ought to have been considered in terms of the mandate of this Court in Writ Petition No. 13181 of 1997 and it was not open to the respondents to have denied the claim on the ground on which the impugned order has been passed. Subsequent to the said denial of benefit of regularization, an order of termination also came to be passed against the petitioner on 6.1.2021, dismissing the services of the petitioner solely on the ground that his claim for regularization has been rejected.

A perusal of the impugned order shows that the sole reason attributed for non-consideration of the case of the petitioner is on account of non-payment of salary, which is not a ground available under the mandate of Section 33-G of the Act. Even otherwise there were directions for payment of the arrears of salary, which is apparent from the sanction order dated 22.3.2003, the request letter dated 12.4.2003 as well as the undertaking given by the respondents before the contempt court as indicated in the order dated 23.4.2003 passed in Contempt Petition No. 104 of 2001.

Learned Standing Counsel opposing the said writ petitions argues that the initial appointment of the petitioner, for which the approval was not granted, was not in accordance with law and thus the petitioner would not be entitled to the benefit of regularization and has been rightly refused payments of the impugned order. He further argues that the fact that the petitioner was not entitled to the payment of the salary is also referred to in the order dated 6.1.2021, impugned in Writ-A No. 1981 of 2021. He thus argues that the writ petition deserves to be dismissed.

A plain reading of Section 33-G of the U.P. Secondary Education (Services Selection Board) Act, 1982 makes it clear that the benefit of regularization to a Teacher other than the Principal or Head Master can be extended subject to the said candidate fulfilling the conditions as specified in Section 33-G (1) of the said provision. A plain reading whereof shows that no such condition exists to the effect that on account of non-payment of the salary for a particular period, the consideration of regularization can be denied to a person.

The submission of the learned Standing Counsel that the initial appointment of the petitioner was an improper exercise of power cannot be accepted as the same is not the basis for denying the benefit of consideration for regularization to the petitioner in the order impugned dated 25.1.2020. It is well settled that the reasoning cannot be supplemented by means of a counter affidavit or by means of argument and the validity of the order is to be seen only on the basis of the reasoning contained in the order impugned before the Court concerned. See Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi; (1978) 1 SCC 405.

That being the case, the order dated 25.1.2020 is quashed with further direction to consider the case of the petitioner for regularization afresh under Section 33-G of the U.P. Secondary Education (Services Selection Board) Act, 1982 and in the light of the judgment of this Court dated 14.9.2018 passed in Writ Petition No. 13181 of 1997. The said exercise shall be completed within a period of four months from the date of filing of a copy of this order before the Regional Level Committee.

Considering the fact that I have allowed the Writ-A No. 8234 of 2020 and have set aside the order impugned therein being the order dated 25.1.2020, accordingly the Writ-A No. 1981 of 2021 also deserves to be allowed as the sole reason for passing the termination order dated 6.1.2021 is the rejection of the claim of the petitioner for regularization vide order dated 25.1.2020.

Accordingly, the Writ-A No. 1981 of 2021 is also allowed. The order dated 6.1.2021 is set aside.

The writ petitions are disposed off in terms of the directions contained herein above.

Copy of the order downloaded from the official website of this Court shall be treated/accepted as certified copy of this order.

Order Date :- 14.7.2021

S. Rahman