Ram Akbal Bahadur Singh And 3 Ors. vs State Of U.P. Thru Prin.Secy. ...
2021 Latest Caselaw 3135 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on 08.02.2021
 
Delivered on 04.03.2021
 
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,Ajay Pratap Singh,Pratibha Singh,Puttan Singh
 

 
CONNECTED WITH
 

 
Case :- SERVICE SINGLE No.15135 of 2019
 
Petitioner :- Ram Akbal Bahadur Singh
 
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu. Lucknow And Ors.
 
Counsel for Petitioner :- Ravi Singh
 
Counsel for Respondent :- C.S.C.
 

 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Ravi Singh, learned counsel for the petitioners, learned Standing Counsel for the State-respondents and Sri Ajay Pratap Singh, learned counsel for opposite party no.5.

One writ petition bearing Writ Petition No.15135 (S/S) of 2019 is connected with this writ petition filed by the same petitioners challenging the subsequent orders passed after filing the first writ petition relating to the same grievance of the petitioners, therefore, with the consent of the learned counsel for the parties, I hereby decide both the writ petitions by common order.

Main prayers i.e. Prayer Nos.I, II, III & IV of Writ Petition No.3765 (S/S) of 2019 are as under:-

"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to issue:-

I. A writ, order or direction in the nature of certiorari, quashing the impugned order dated 18.08.2018 passed by Joint Director, 6th Section, Lucknow with the extent to joining of the petitioner in different - different colleges, as contained in Annexure No.1 to the writ petition.

II. A writ, order or direction in the nature of certiorari, quashing the impugned relieving order dated 20.08.2018, by which petitioner are relieved from Achraya Acharya Diwedi Inter College, Raebareli, as contained in Annexure No.2 to the writ petition.

III. A writ, order or direction in the nature of certiorari, quashing the impugned order dated 28.08.2018, passed by Joint Director of Education-Sixth Section, Lucknow, as contained in Annexure No.3 to the writ petition.

IV. A writ, order or direction in the nature of mandamus directing opposite parties, not to give effect order dated 18.08.2018, 20.08.2018 & 28.08.2018, contained as Annexure No.1, 2 & 3 to the writ petition."

Main prayers i.e. Prayer Nos.I, II & III of Writ Petition No.15135 (S/S) of 2019 are as under:-

"WHEREFORE, it is most respectfully prayed that this Hon'ble Court may graciously be pleased to issue:-

I. A writ, order, or direction in the nature of certiorari, quashing the impugned order dated 05.04.2019, by which representation of the petitioner was rejected, which is contained as Annexure No.1 to the writ petition.

II. A writ, order, or direction in the nature of certiorari, quashing the impugned order dated 03.08.2018, passed by Additional Chief Secretary, which is contained as Annexure No.2 to the writ petition.

III. A writ, order or direction in the nature of mandamus directing opposite parties, not give effect to the impugned order dated 05.04.2019 & 03.08.2018, so far it relates to the petitioners, contained as Annexure No.1 & 2 to the writ petition."

By means of Writ Petition No.3765 (S/S) of 2019, 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.5281 (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 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 03.05.2002 was 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.

Learned counsel for the petitioners 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. However, it has also been informed by learned counsel for opposite party No.5 that 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.

While assailing the orders under challenge, the submission of learned counsel for the petitioners, 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.

In compliance of the order dated 11.2.2019, the State has filed short counter affidavit and learned counsel for the petitioners has filed reply to the short counter affidavit before 26.3.2019 as the case was listed on 26.3.2019.

On 26.3.2019, learned counsel for the petitioners again reiterated the grievance by submitting that the petitioners have been discharging their duties since 1984, 1985, 1986 & 1988 respectively and have been getting their salary but pursuant to the impugned order, the petitioners are being shifted to another Institution.

On that, 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.

Learned counsel for the Authorized Controller of the Committee of Management, Sri Ajay Pratap Singh, could not demonstrate any reason as to why the students were not admitted in the Institution with effect from the year 2003 and the Teachers are being paid salary. He has, however, clarified that the Authorized Controller has been appointed for the Institution in question w.e.f. July, 2018 whereas the Primary Section of the Institution in question was not functioning w.e.f. July, 2003, therefore, it was the responsibility of the Committee of Management at that point of time to act strictly in accordance with law and the liability for that period, if any, may be fastened against the office bearers of the Committee of Management.

Learned Standing Counsel has submitted that pursuant to the Government Order bearing No.1412/15-5-2018-1601 (178)/ 2015 issued by Secondary Education Section-5 dated 3.8.2018 and in furtherance of the direction issued by the Director, Secondary Education, U.P., Lucknow for adjustment/ absorption of the petitioners in the attached Primary Section of the other Institutions as the attached Primary Section of Acharya Dwivedi Inter College, Raebareli was not functional, the adjustment of the petitioners have been made. The salary of the petitioners was being paid in compliance of the judgment and order dated 3.5.2002 passed by this Hon'ble Court in Writ Petition No.5281 (S/S) of 1999. He has further submitted that under the Government Order dated 3.8.2018 and the direction issued by the Director, Secondary Education in pursuance thereof the petitioners, who were the Teachers of attached Primary Section of Acharya Dwivedi Inter College, were to be adjusted in the attached Primary Sections of other Non-Government aided Secondary Schools of District Raebareli and in case of non-existence of vacancy in attached Primary Sections of the Schools in Raebareli, the adjustment was to be made in the attached Primary Section of the Non-Government aided Secondary Schools of Lucknow Division and it was also directed that the Trained Teachers will be paid the salary of trained grade teacher and the Untrained Teachers will be paid the salary of untrained grade. Further, in pursuance of the aforesaid directions of the Director, Secondary Education issued in compliance of the Government Order dated 3.8.2018, the Joint Director, Secondary Education, 6th Region, Lucknow has issued the adjustment/ absorption order dated 18.8.2018 and in furtherance thereof the Authorized Controller, Acharya Dwivedi Inter College, Raebareli has issued the order dated 20.08.2018 whereby the petitioners have been relieved to submit their joining at their adjusted place of posting. Learned Standing Counsel has submitted that by means of the judgment and order dated 3.5.2002 in Writ Petition No.5281 (S/S) of 1999, this Hon'ble Court was pleased to pass the orders for payment of salary w.e.f. October, 1999 but the petitioner Sri Ram Akbal Bahadur Singh in utter disregard of the orders passed by this Court got his salary fixed w.e.f. 6.9.1989. The financial advice was sought from the Finance Controller in respect of the pay fixation of the petitioner Ram Akbal Bahadur Singh and the finance advice from the Finance Controller was awaited but in the meantime, the petitioner under the threat of complaints got his salary fixed by the then District Inspector of Schools, Raebareli wrongly in anticipation of the permission without the financial advice being received from the Finance Controller and as and when complaint was received in that regard and on scrutiny being made for the fixation of the petitioners' salary beyond the orders passed by this Hon'ble Court dated 3.5.2002, the Joint Director of Education, 6th Region, Lucknow issued the order dated 28.8.2018 in order to rectify the illegal pay fixation of petitioner no.1, therefore, so far as the case of petitioner no.1 is concerned, there might not be any illegality in the order dated 28.8.2018, however subject to further verification. He has further submitted that so far as the other petitioners are concerned, no irregular monetary benefits have been given to them.

During the course of the argument, learned Standing Counsel has produced copy of instructions letter dated 4.2.2021 issued by the District Inspector of Schools, Raebareli addressing to the Chief Standing Counsel of this Court, the said instructions are on record. On the basis of aforesaid instructions, learned Standing Counsel has submitted that since no teaching work in the Primary Section of the Institution in question was available since 2003, therefore, by means of an order dated 18.8.2018 [Annexure No.1 to Writ Petition No.3765 (S/S) of 2019], all the petitioners were adjusted at other Institutions strictly in accordance with law. It has been submitted that if the petitioners submit their joining at the Institution where they have been adjusted pursuant to the order dated 18.8.2018, they shall be permitted to submit their respective joining and shall be paid their regular salary.

No counter affidavit or rejoinder affidavit has been filed in Writ Petition No.15135 (S/S) of 2019 (connected writ petition) and on the first date of admission i.e. 28.5.2019, on the request of learned counsel for the petitioners, the writ petition was connected with Writ Petition No.3765 (S/S) of 2019 with the direction to exchange the pleadings and with the further direction to the State to indicate as to who is running the Institution in question since 2003. In the said writ petition, the petitioners have assailed the order dated 5.4.2019 passed by the Joint Secretary of Education (Secondary), Lucknow on the ground that the Primary Section of the Institution in question was closed since 1.7.2003 and no student is studying in the said Institution, therefore, there was no occasion to take the petitioners' services in the said Institution, however, the petitioners were getting salary in compliance of the order of this Court dated 3.5.2002 passed in Writ Petition No.5281 (S/S) of 1999.

Heard learned counsel for the parties and perused the material available on record.

Be that as it may, it is strange to note that being an old Institution getting grant-in-aid and there were 37 Assistant Teachers working in the Primary Section of the Institution on or before 1.7.2003 but in absence of necessary funds, the Management has closed the attached Primary Section w.e.f. 30.6.2003. However, the Apar Primary/Junior Section and Intermediate Section are still functioning. Since on account of aforesaid reason that attached Primary Section is not functioning w.e.f. 1.7.2003, therefore, attachment of the petitioners at respective Educational Institutions pursuant to the order dated 18.8.2018 appears to be bonafide. This is an accepted policy that the Teachers of Primary Sections be adjusted considering the pupil-teacher ratio at the Institution where their services are in fact required. This is a domain of the State Agency to do proper exercise and ensure that the Teachers are adjusted at the Institution as per the policy and scheme. The impugned order dated 5.4.2019 assailed in Writ Petition No.15135 (S/S) of 2019 clearly indicates vide para-2 thereof that the petitioners have been getting regular salary w.e.f. October, 1999 and the adjustment of the petitioners has been made strictly in accordance with the policy regarding attachment of the Teachers as per pupil-teacher ratio, therefore, the petitioners may not be permitted to discharge their respective duties at the Institution in question at Raebareli where the Primary Section is not functioning since 1.7.2003. I do not find any infirmity in the said order dated 5.4.2019. The petitioners have assailed the order dated 3.8.2018, [Annexure No.2 in Writ Petition No.15135 (S/S) of 2019] issued by the Additional Chief Secretary, Government of U.P. addressing to the Director of Education (Secondary), U.P., Lucknow taking decision pursuant to the direction of this Court dated 17.12.2003 issued in Writ Petition No.5641 (S/S) of 1999 holding that when no Primary Section is functioning in the Institution in question since 1.7.2003, therefore, the petitioners may not be permitted to be posted at the said Institution and they may only be adjusted in any Institution where their services are required. It has been indicated in this order that the petitioners have been getting their salary in compliance of the orders passed by the superior courts. The impugned order dated 18.8.2018 [Annexure No.1 of Writ Petition No.3765 (S/S) of 2019] has been passed in compliance of the order dated 3.8.2018. I do not find any infirmity or illegality in the order dated 3.8.2018 passed by the Additional Chief Secretary of the Department of Secondary Education and in the order dated 18.8.2018 passed by the Joint Director of Education, 6th Region, Lucknow.

However, the order dated 28.8.2018 (Annexure No.3) challenged in Writ Petition No.3765 (S/S) of 2019 passed by the Joint Director of Education, 6th Region, Lucknow is perverse and unwarranted so far as it directs for recovery of salary which has allegedly been paid to the petitioners irregularly inasmuch as the aforesaid order itself provides that the anomaly of such kind has been made in case of petitioner no.1 only but in the operative portion of the order, such recovery has been directed against all the petitioners. Therefore, the order dated 28.8.2018 [Annexure No.3 in Writ Petition No.3765 (S/S) of 2019] passed by the Joint Director of Education, 6th Region, Lucknow is set aside so far as it relates to petitioners no.2, 3 & 4. However, appropriate orders may be passed in the case of petitioner no.1 but strictly in accordance with law, by affording him an opportunity of hearing/personal hearing, seeking proper explanation from him.

In view of what has been directed above, both the writ petitions are decided finally permitting the petitioners to submit their respective joining at the Institution in question with promptness, preferably within a period of one month from today pursuant to the order dated 18.8.2018 [Annexure No.1 to Writ Petition No.3765 (S/S) of 2019] and if the petitioners submit their respective joining at the Institution in question, the competent authorities are directed to accept the joining of the petitioners within one week and the petitioners shall be permitted to discharge their respective duties and they shall be paid their regular salary and other consequential benefits as and when the same fall due.

Both the writ petitions are disposed of in the aforesaid terms.

No order as to costs.

[Rajesh Singh Chauhan,J.]

Order Date :- 4.3.2021

RBS/-