Ram Lochan Yadav vs Director Of Education And 2 Ors
2022 Latest Caselaw 9008 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 6
 

 
Case :- WRIT - A No. - 520 of 2005
 

 
Petitioner :- Ram Lochan Yadav
 
Respondent :- Director Of Education And 2 Ors
 
Counsel for Petitioner :- G C Verma
 
Counsel for Respondent :- C.S.C,Ajay Kumar,Vijay Bajpai
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri G.C. Verma, learned counsel for the petitioner, Sri Ajai Kumar, learned counsel for opposite party no.2 and learned Standing Counsel for opposite parties no. 1 and 3.

2. By means of present writ petition, petitioner has prayed for issuance of a writ of mandamus commanding the opposite parties no. 2 and 3 to comply and carry out the order dated 10.05.2004 issued by opposite party no.2 contained as Annexure no.10 to the writ petition with further prayer to issue writ order or direction in the nature of mandamus commanding the opposite parties to allow to join the petitioner by issuing the formal order of Vidyalaya in pursuance of the order dated 10.05.2004.

3. The facts of the case are that the petitioner was appointed on 04.01.1983 as Direct Entery Sailer in the service of Indian Navy and during his service he was promoted as Radio Operator in the year 1989. The petitioner was again promoted as Leading Radio Operator in the year 1993. The petitioner had obtained training from 31.08.1998 to 09.01.1999 and was further promoted as P.E.T.T. 4 Officer Radio.The Commanding Officer Incharge issued Certificate of Discharge on 15.01.2003 in which according to Rule framed by the Government of India the petitioner who have obtained the training during service was equated to the qualification of graduation. In the Discharge/ Retirement Certificate it was specially mentioned that the petitioner is eligible for the appointment where the educational qualification is essential graduation. On 17.01.2003, another certificate was issued by the Indian Navy by which it was clarified that the petitioner can be appointed being ex-servicemen and is fully qualified for appointment on civil post. In the certificate petitioner was fully qualified for being appointed as Physical Instructor, Security Officer, Head Light Keeper and according to N.C.O. Code NO. 153.10 as Primary Teacher in Primary School. After retirement, petitioner got his reregistration in the office of District Sainik Kalyan and Punarva Faizabad for appointment as primary school teacher on 29.04.2003.

4. The petitioner moved an application before opposite party no.3, as Ex-servicemen for appointment on the post of Assistant Teacher in Primary School, but opposite party no.2 did not consider the case of the petitioner for appointment. Thereafter the petitioner filed a Writ Petition No.1367 (SS) of 2004 placing reliance on the judgments and orders passed by Delhi High Court in the cases of Ranbir Singh Vs. D.S.S.S.B. and another; 2002 III AD (Delhi) 537, passed in Civil Writ Petition Nos. 2316 of 2000 and Lajja Ram Bhardwaj Vs. Municipal Corporation of Delhi; 2002 (63) DRJ 547 passed in Civil Writ Petition No.6650 of 2001 in support of his case on the same issue. The said writ petition filed by the petitioner was decided on 18.03.2004, directing the respondent no.2 to decide the representation of the petitioner by a speaking order.

5. In compliance of the judgment and order passed by this Court on 18.03.2004, petitioner appeared before the District Basic Education Officer who passed an order dated 10.05.2004 on the representation of the petitioner, holding that the petitioner is eligible for appointment on the post of Assistant Teacher, however the opposite party no.2, who himself passed the order that the petitioner is eligible to be appointed on the post Teacher, is not allowing the petitioner to join on the said post and also not allotting the School in this regard. Being aggrieved thereto, the petitioner moved an application again on 07.01.2005, requesting therein that he should be granted appointment on the post of Assistant Teacher and allow to resume the work in any Primary School allotted in this regard, in compliance of the order passed by this Court on 18.03.2004 passed in Writ Petition No.1367 (SS) of 2004 and in pursuance to the order dated 10.05.2004 passed by the opposite party no.2 himself. However, when no action was taken by the opposite party no.2, the petitioner again approached this Court by filing the instant writ petition before this Court wherein this Court on 27.01.2005 had passed the following order:-

"Heard learned counsel for the petitioner and Sri Vijay Bajpai, who has put in appearance on behalf of opposite party no.2.

In compliance of the judgment and order passed by this Court on 18.03.2004, the Basic Shiksha Adhikari, Faizabad has passed an order on 10.05.2004. The operative portion of the order is quoted below:-

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Learned counsel for the petitioner has submitted that more than eight months have passed but the order has not been complied with. The petitioner has not given appointment on the post of Assistant Teacher.

In view of the above, the Basic Shiksha Adhikari, Faizabad is directed to give appointment order to the petitioner in the light of the judgment and order passed by this Court on 18.03.2004  and his own order dated 10.05.2004,within one month from today. If the appointment is not given to the petitioner, the opposite party no. 2 shall appear in person in this Court on 23.03.2005.

List on 23.0.03.2005."

6. When the order quoted hereinabove was not complied with, the petitioner preferred a Contempt Petition bearing Crl. Misc .Case No.809 (C) of 2005 (Ram Lochan Yadav Vs. Devi Sahai Tiwari and another) wherein this Court has passed an order dated 08.11.2006, the operative portion of the order is quoted below:-

" The argument of the learned counsel for the opposite parties is that in the year 1997, the State Government on 11.08.1997 had withdrawn all earlier notification providing for equivalence of the qualifications. The said notification dated 11.08.1997 has, however, not been brought on record.

In view of the circumstances mentioned above, the opposite party nos.1 and 2 appear to have committed contempt of this Court by not complying with the order. They shall appear in person on 15.11.2006 for framing charges and they shall show cause why they be not punished."

7. Thereafter, in compliance of the order dated 08.11.2006, appointment order was issued on 14.11.2006 and in pursuance thereof petitioner joined his service on the post of Assistant Teacher on 18.11.2006.Thereafter petitioner was sent for training from 02.07.2012 to 26.08.2014.The certificate to this effect obtained by the petitioner has been enclosed as Annexure no. SA-6 to the supplementary affidavit. In pursuance thereof, he has been paid trained grade salary by passing an order dated 21.05.2015 which is annexed as Annexure no. SA-7 to the supplementary affidavit.

8. The submission of Sri Verma, learned counsel for the petitioner is that a direction was issued to the District Basic Education Officer, Faizabad for considering the claim of the petitioner in the light of certain judgments passed on similar facts and circumstances.The District Basic Education Officer, Faizabad pursuant thereto took a decision that the petitioner is eligible and qualified for appointment on the post of Assistant Teacher. He also submits that in compliance of the order of the District Basic Education Officer, Faizabad, petitioner was not granted appointment then he approached this Court by filing present writ petition wherein by means of interim order a direction was issued to District Basic Education Officer, Faizabad to give appointment order to the petitioner in the light of the judgement and order passed by this Court on 10.03.2004. The interim order was not complied with then he filed contempt petition wherein a direction was issued that the respondents shall appear in person on 15.11.2006 for framing of charges and thereafter appointment letter was issued to the petitioner on 14.11.2006. He further submits that under Rule 10 of the U.P. Basic Education (Teachers) Service Rules,1981 relaxation for ex-servicemen and certain other categories have been provided and taking into consideration this aspect of the matter, petitioner has been granted appointment on the post of Assistant Teacher. For ready reference, Rule 10 of Rules,1981 is being quoted below:-

"10. Relaxation for ex-servicemen and certain other categories- Relaxation, if any, from the maximum age-limit, educational qualifications or/ and any procedural requirements of recruitment in favour of the ex-servicemen, disabled military personnel, dependents of military personnel dying in action, dependants of Board's servants dying in harness and sportsmen shall be in accordance with the general rules or order of the Government in this behalf in force at the time of recruitment."

9. His next submission is that once in compliance of the interim order, petitioner has been issued appointment letter and has also been provided trained grade on completion of training , he should be allowed to continue in service in terms of interim order granted by this Court.

10. On the other hand, Sri Ajai Kumar, learned Standing Counsel submits that relaxation as provided under Rule 10 of the Rules 1981 can be granted to ex-servicemen only when the post is advertised,inviting applications for eligible and qualified candidates.The candidature of the petitioner was considered without there being any advertisement inviting applications, therefore, he is not entitled to continue on the post of Assistant Teacher in Primary School. He further submits that although the judgment which has been relied upon by learned counsel for the petitioner is not disputed ,therefore, the appointment of the petitioner made by the District Basic Education Officer, Faizabad has been made following the judgment of this Court under the direction issued on 18.03.2004.

11. I have considered the arguments advanced by learned counsel for the parties and perused the material on record.

12. On perusal of judgment relied upon by learned counsel for the petitioner which was followed by the District Basic Education Officer, Faizabad in passing the order, holding that petitioner is eligible for appointment on the post of Assistant Teacher in Primary School. The said judgment has been reported in 2002 III AD ( Delhi) 537; Ranbir Singh Vs. D.S.S.S.B. & another, wherein it has been held that petitioner seeking appointment to the post of a teacher being the retired army personnel and he has certificate of equation of trades, equalization procedures prescribed for facilitating employment of retired army personnel, as such it was not open to the respondent/corporation to hold that petitioner is not qualified; rather the petitioner was liable to be appointed.

13. Following this decision, a direction was issued for consideration of claim of the petitioner on 18 03.2004. In pursuance thereof the District Basic Education Officer, Faizabad considered and found the petitioner to be eligible for appointment on the post of Assistant Teacher. When no appointment was made, he preferred present writ petition and obtained interim order on 27.01.2005 and when no appointment letter was issued, he preferred a contempt petition bearing Crl. Misc. Case No. 809(C) of 2005 (Ram Lochan Yadav Vs. Devi Sahai Tiwari and another) wherein considering the relevant aspect of the matter it was held that the circumstances mentioned therein, opposite parties no.1 and 2 therein to appear in person as they have committed contempt of this Court by not complying with the order and they were directed to appear in person on 15.11.2006 for framing of charge and they were also directed to show cause as to why they be not punished. Thereafter petitioner was issued an appointment letter on 14.11.2006 and he has also been sent for training and on completion of two years training he is getting trained grade salary. In view of the above, it would not be appropriate to discontinue the petitioner from the post of Assistant Teacher in Primary School.

14. In view of the reasons recorded herein above, the writ petition succeeds and is allowed. However, a writ of mandamus is issued to the respondents to permit the petitioner to discharge his duties on the post of Assistant Teacher and to pay him salary regularly month by month and he shall be entitled for all consequential benefits admissible to the post held by the petitioner.

(Irshad Ali,J.)

Order Date :- 3.8.2022

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