Smt.Kusum Lata Devi vs The State Of U.P.Through The Secy. ...
2021 Latest Caselaw 3637 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 4
 

 
Case :- SERVICE SINGLE No. - 4799 of 2010
 

 
Petitioner :- Smt.Kusum Lata Devi
 
Respondent :- The State Of U.P.Through The Secy. Of Madhyamik Education
 
Counsel for Petitioner :- Pt.S.Chandra,P.K.Singh,R.U.Pandey,Ramesh Pandey
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rajan Roy,J.

Heard Vinod Kumar Gupta, Advocate holding brief of Pt. S. Chandra for the petitioner and Shri Pradeep Kumar Singh for the State.

This petition was filed in the year 2010 seeking a Writ of Mandamus commanding the concerned opposite parties to pay the petitioner, regular salary for the post of Assistant Teacher L.T. Grade along with arrears w.e.f. 22.12.2009 and not to create any hindrance in the petitioner's functioning.

The petitioner claims to have been appointed by the Committee of Management against a duly sanctioned and vacant post of Assistant Teacher L.T. Grade on 21.12.2009.

For his entitlement to salary first and foremost the appointment has to be legal and valid. This controversy has engaged the attention of this Court in several cases one of which was Sanjay Singh and others Vs. State of U.P. and others; (2013) 1 UPLBEC 758. Another Singe Judge noticing conflicting judgments on the issues pertaining to the right and entitlement of the Committee of Management to appoint Assistant Teachers in privately managed institutions aided or otherwise and the entitlement to salary of such appointees passed an order on 03.02.2014 referring the matter to a larger Bench. This reference was made in Writ Petition no. 655 (S/S) of 2014. The reference came to be decided by a Division Bench of this Court vide judgment dated 17.12.2015. The decision of the Single Judge Bench in Sanjay Singh's Case (Supra) was overruled. It was held that it did not lay down the law correctly and the judgment in the case of Pradeep Kumar Vs. State of U.P. and others, Writ A no. 22520 of 2013 (decided on 01.05.2013) was upheld. The Division Bench also considered the scope of Section 16-E(11) when read in the context of Section 16, 22, 32 and 33E of the U.P. Secondary Education (Service Selection Boards) Act, 1982. In this context it has referred to the Full Bench decision of this Court in the cases of Santosh Kumar Singh Vs. State of U.P. and others; 2015 (33) LCD 240. Against the Division Bench judgment dated 17.12.20215. Special leave petitions were filed before the Hon'ble Supreme Court by aggrieved persons. A number of petitions were filed which were converted into civil appeals. The leading civil appeal was Civil Appeal no. 8300 (C) of 2016 and various other appeals were connected with it. Initially an interim order was passed in these appeals by Hon'ble the Supreme Court on 07.08.2020. Based on this, various writ petitions were filed herein claiming the benefit of the said interim order by persons who were party before the Supreme Court but also by those who were not parties before the Supreme Court. In this process in some of the petitions the selection made by the Board against the post on which such petitioners were working was also put to challenge. In some regularization of Service was also claimed.

Be that as it may Civil Appeal no. 8300 (C) of 2016 and other connected matters came to be finally decided by Hon'ble the Supreme Court on 26.08.2020 in the following terms:-

"1. The present dispute is a reflection of the mess in the education system where starting from the primary level to the highest level adhocism seems to prevail in the appointment of teachers and lecturers in turn having consequences for the students who need to benefit from the best education process. That has not been so.

2. It is in the aforesaid circumstances that the impugned judgment (Writ Petition No.655 of 2014 Abhishek Tripathi vs. State of U.P. through Secy. Secondary Education, Lko. & Ors. decided on 17th December, 2015) has been rendered to bring an end to the adhocism which was prevailing. The impugned judgment recognizes the mess which is created to which all are contributory but ultimately deemed it proper to decline relief.

3. We have been hearing this matter from time to time to find the solution. We may say at the inception that we are not in disagreement with what has been set out in the impugned judgment but then this Court has the benefit of Article 142 of the Constitution of India to do complete justice between the parties and we are taking recourse to this to deal with the mess which is before us i.e. a complete adhocism in the working of the education system whereby TGTs and lecturers have been working for years and decades without a regularization. We do find that everyone is to blame for this scenario as what was an adhoc arrangement never fructified in the proper regularization or by holding examination in which recruitment could take place. If the recruitments did take place, that was periodic in terms of examination held after long period of time.

4. We have heard learned counsel for the parties at length earlier and even today to find a solution to the problem. Our attention has also been drawn to the last additional affidavit filed by the State of Uttar Pradesh and what emerges is that the State proposes to hold a competitive examination for recruitment of 15000 TGTs and lecturers both (if there are more existing vacancies reported as per rules, the Commission should take care to advertise even for those vacancies). Insofar as the parties before us are concerned, whether as appellants/petitioners or as interventionist, on verification it was found that there are 659 persons before this Court and out of them information regarding 112 persons could not be traced out in absence of details. The details are available only for 547 adhoc teachers (in view of appellants disputing, this is subject to further verification) being 84 lecturers and 463 TGT grade teachers as set out in paragraph 11 of this affidavit.

5. We did debate the issue whether a separate examination should be held for such persons or whether they should participate in the prospective examination process. Normally the difficulty arises on account of the age bar but i.e. undisputedly not a factor in the present case as everybody will be permitted to appear. At times separate examinations have been held in different situations but in the present case we are not concerned with persons who are working at a trade and have been away from the academics since the very nature of job of teaching envisages a continued academic pursuit and improving your skills in teaching.

6. A concern has been expressed by learned counsel for the appellants and applicants that there may be persons who may have rendered long period of service as adhoc and if they really participate in the examination and are even successful, they may not get benefit of the past service, specially retirement benefits, as some of them may be near the age of retirement than the fresh candidates.

7. It is in the conspectus of all the aforesaid circumstances that we consider appropriate to issue the following directions in exercise of power under Article 142 of the Constitution of India:

(a) All the petitioners/appellants and applicants before us and for that matter all persons eligible under the advertisement will be permitted to appear for one single examination.

(b) Such of the persons who are successful, would have to go through a process of interview insofar as the post of lecturers is concerned, as we are informed that the post of TGTs the interviews have been dispensed with.

(c) We are inclined to give some weightage to the persons who have worked as TGT and lecturers depending on the period of service rendered. It is respondent No.3-Commission which will have to tweak this aspect and work out giving some weightage to both TGT and lecturers depending on the period of service rendered. In the case of TGTs, such weightage will have to form a part of the total marks while in case of the lecturers such weightage can be given in the process of interview.

(d) The advertisement to be issued should contain the terms of these directions issued by us today.

(e) We make it clear that the decision as aforesaid will be final of the Commission and no further litigation will be entertained in respect thereof.

(f) Insofar as the verification of past service is concerned, the concerned teachers/lecturers would give the particulars and details to the Commission for obtaining such weightage and that aspect will be verified by the Commission in consultation with the State Government as we are told that it is the State Government which would have the wherewithal to do the needful. Needless to say that aspect will also be final without any further litigation being entertained in that behalf.

(g) In view of the weightage given, for the same the examination process can be completed.

(h) The other aspect is that apart from the weightage, the period which has been verified as having been spent in teaching as adhoc, would be counted for purposes of retiral benefits of the TGTs and Lecturers.

8. On having considered and on having issued the aforesaid directions, we also feel it is necessary to direct that we are not faced with such a situation in future. We would thus like to direct the State and the Commission to lay down a schedule for periodically holding examinations so that it creates employment opportunities and also the students are benefitted. We would require the Commission to not only take into consideration the existing but also future vacancies reported as per rules for purposes of holding such examinations in future. This should be strictly followed. The learned Advocate General states that this aspect is being taken care of.

9. In view of the petitioners/appellants in their own case having made the ground on the basis of Section 16-E(sub-section 11) of the Intermediate Education Act, 1971 that where teachers have been working for period against substantive vacancies temporarily, there is a provision to give benefits to them, we consider appropriate that the benefits of past service would be rendered only to such of the persons who have been appointed temporarily in accordance with the provisions of this Section. We expect the State to be fair in this matter in recognizing the various nature of vacancies which may have arisen.

10. We have also considered the prayer made in IA No.48618 of 2020 in SLP(Civil)Nos.19561-19562 of 2019. We have heard learned counsel for the parties on this aspect and have taken cognizance of the fact that there may be teachers/lecturers who are working and not paid for almost two years. The second concern is that till this examination process is completed, a prayer is made on behalf of the petitioners/appellants and the applicants that they should be permitted to continue.

11. On having examined the issue, we feel it will be appropriate to direct that the teachers/lecturers who are employed at present the TGTs and lecturers would continue to be so employed till the aforesaid process is completed and to the extent the financial benefits are given by the State Government to the institutions, against appointments made in compliance with Section 16-E (subsection 11) of the Act, the same will also be given to provide succour to the TGT/lecturers.

12. We end with the hope that we will never be faced with the aforesaid situation again and the State Government and the Commission will also make every endeavour to ensure that the order is complied in its true intent and spirit and specially the aspect of holding examinations for the future taking into consideration all current and future vacancies reported as per rules is followed in times to come. We need not emphasize that education in a very important role performed by a State apart from the area of medical assistance to citizens and thus it is necessary that the full benefit is extended to the students which can only take place if the full strength of teachers is available at the requisite time. This in turn requires compliance with the aforesaid directions for the future.

13. Since there is always hope, we hope for a better future.

14. The aforesaid exercise by the Commission in consultation with the State Government should be completed well in time to ensure that at least in the session commencing in July, 2021 all teachers up to date are in place.

15. All the appeals and special leave petitions are disposed of in terms aforesaid.

16. All pending applications also stand disposed of."

The petitioner herein was not a party before the Supreme Court but it is not disputed rather it is fairly submitted by the learned Counsel for the petitioner that the matter is covered by the aforesaid decision of the Supreme Court.

In view of the above, as the issue involved herein already stands concluded by the decision of Hon'ble the Supreme Court which has disposed of the appeals with certain observations/directions, therefore, this petition is also liable to be disposed of in the same terms and there is no occasion for this Court to consider the reliefs prayed herein separately and independently. Whatever right the petitioner claims, it will have to be considered in terms of the judgment of the Supreme Court quoted hereinabove and not otherwise.

The petition is therefore disposed of with a direction to the concerned opposite parties to consider as to what benefits the petitioner is entitled regarding continuance of service and payment of salary in terms of the decision of the Supreme Court as aforesaid, if any, and take a decision accordingly.

The writ petition stands disposed of in the following terms.

Order Date :- 16.3.2021

Lokesh Kumar