C/M Kisan Inter College And ... vs State Of U.P. And 5 Others
2023 Latest Caselaw 21920 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:165130
 
Court No. - 35
 

 
Case :- WRIT - A No. - 12368 of 2023
 

 
Petitioner :- C/M Kisan Inter College And Another
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Parmatma Nand Ojha,Abhishek Shekhar Ojha,Anurag Kumar Ojha
 
Counsel for Respondent :- C.S.C.,Kushmondeya Shahi,Rajendra Prasad Maury
 
connected with
 
Case :- WRIT - A No. - 57130 of 2017
 

 
Petitioner :- C/M Kisan Uchhatar Madhyamik Vidyalaya Kandhi Kanpur Dehat
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Arvind Kumar Upadhyay,Dinesh Kumar Tripathi
 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav,Monika Arya
 

 
Hon'ble Vikas Budhwar,J.

Since, common questions are involved in Writ - A No. 12368 of 2023, (in short 'leading writ petition') as well as Writ - A No. 57130 of 2017, (in short 'connected writ petition'). Thus, with the consent of the parties, the writ petition is being decided by composite order.

Heard Sri P.N. Ojha, learned counsel for the writ petitioners in both the writ petitions as well as Sri P.K. Shahi, learned Additional Chief Standing Counsel, who appears for respondent nos. 1, 2, 4 and 5 in the leading writ petition as well as respondent nos.1 and 2 in the connected writ petition and Sri Tarun Shahi, learned counsel, holding brief of Sri Kushmondeya Shahi, who appears for the third respondent in the leading writ petition and the third respondent in the connected writ petition.

The case of the writ petitioner, Committee of Management, Kisan Inter College, Kandhi, Ramabai Nagar, Kanpur Nagar is that it is an institution, which is recognized, aided and is governed under the provisions contained under the Uttar Pradesh Intermediate Education Act, 1921 and the provisions of U.P. Secondary Education Service Selection Board Act, 1982 as well as the Payment of Salaries Act No. 24 of 1971.

It is further the case of the writ petitioners that Sri Ganesh Shanker (in short 'delinquent teacher') was appointed on 07.07.2019 in the J.T.C. Grade in Primary Section attached with the petitioners' institution. As per the writ petitioners, the delinquent teacher had concealed his educational qualifications and procured appointment illegally. Pursuant thereto, on the complaint being sought to be lodged, a resolution was passed on 15.03.2011 by the petitioner's, Committee of Management with regard to making of inquiry with respect to the testimonials of the delinquent teacher. One Sri R.N. Katiyar was appointed as an inquiry officer, who served a charge-sheet dated 10.07.2011 upon the delinquent teacher and thereafter inquiry was conducted and post submission of the inquiry report dated 12.08.2011, a resolution was passed by the petitioner, Committeee of Management on 30.08.2011 dispensing with the services of the delinquent teacher. It is further the case of the writ petitioner, Committee of Management that the papers were transmitted on 02.01.2012 to the District Inspector of Schools, Kanpur Dehat for further transmitting the papers to the U.P. Secondary Education Service Selection Board, Prayagraj for according approval. Pleadings further reveal that the District Inspector of Schools, Kanpur Nagar transmitted the papers on 02.01.2012 before the U.P. Secondary Education Services Selection Board, Prayagraj, however, the same was sought to be returned back on 18.12.2012 on account of certain shortcomings. Further on 29.05.2013, the District Inspector of Schools, Kanpur Nagar, again forwarded the paper to the Board, which again according to the writ petitioner was initially kept on record without being put to motion and thereafter when the writ petitioners corresponded with the respondents, nothing was done in this regard. Alleging inaction on the part of the respondents in either approving or disapproving the dispensation of the services of the delinquent teacher, the writ petitioner herein preferred Writ - A No. 57130 of 2017, seeking following reliefs :-

In the said writ petition, on 30.11.2017, the following orders were passed :-

"Learned counsel appearing for the third respondent would submit that till date the Board has not been constituted by the State, as such, it is not possible to take decision with regard to the termination order passed by the petitioner, committee of management, on 5 September 2011, terminating the services of the fourth respondent despite directions of this Court passed in a petition being Writ-C No. 28150 of 2012 (C/M Kisan Inter College Versus State of U.P. and others).

Learned Standing Counsel to seek instructions as to when the Board is likely to be constituted.

Put up this matter on 19.12.2017 as fresh."

On 19.12.2017 in Writ A No. 57130 of 2017, the following orders were passed :-

"Learned counsel for the respondent has received instructions and would submit that the Selection Board shall be constituted shortly.

Respondents are allowed four weeks' time to file counter affidavit. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

List on 5 February 2018.

Pendency of the petition shall not mean that any interim order is granted in the matter."

It has been apprised to the Court that the said writ petition is pending before this Court.

According to the writ petitioner, the delinquent teacher superannuated on 31.03.2020 and now an order has been passed on 03.07.2023 by the Secretary, U.P. Secondary Education Service Selection Board, Prayagraj, whereby it has been decided not to the consider the issue on merit as to whether the dispensation of the services of the delinquent teacher is to be approved or disapproved.

Questioning the order dated 03.07.2023, passed by the Secretary, U.P. Secondary Education Service Selection Board, Prayagraj as well as the consequent order dated 04.07.2023, passed by the District Inspector of Schools, Kanpur Dehat, the leading writ petition has been filed. In the leading writ petition on 10.08.2023, the following orders were passed :-

"Sri Ojha learned Senior Counsel for the writ petitioners submits that the order passed on 03.07.2023 by the third respondent U.P. Secondary Education Service Selection Board, Prayagraj proceeds on misconception of facts and law particularly in view of the fact that for no fault of the petitioner Committee of Management though the papers were transmitted regarding the dispensation of the services of the sixth respondent through the DIOS Kanpur Dehat within the time and even on their inaction a writ petition was preferred, Writ A No. 57130 of 2017 in which on 30.11.2017 learned Standing Counsel took time so as to apprise the Court at when the Board is to be constituted but now the third respondent has denuded himself to address on the merits as to whether approval/disapproval is to be done as the delinquent, sixth respondent stood superannuated on 31.03.2020. It is the further submission of the learned Counsel for the writ petitioners that even otherwise once the District Inspector of Schools earlier had required the writ petitioners to again submit the proposal then it partakes the situation wherein the documents were already available and he could have transmitted the same and not got it returned back in that regard.

Sri Shahi who appears for the Board has relied upon the decision in Writ A No. 18562 of 2021 (Raj Kumar Bhadoria Vs. State of U.P.) decided on 07.07.2022 as well as the judgment in the case of Committee of Management Jay Jawan Jai Kishan Inter College Vs. State of U.P. so as to further contend that even if the recommendation proposal for dispensing of the services was before the Board in terms of Section 21 of the U.P. Act No. 5 of 1982 and in between the delinquent superannuated then the Board becomes functus officio to even consider the proposal even for approval or disapproval.

Put up this case as fresh on 16.08.2023 at 2:00 P.M., along with the records of Writ A No. 57130 of 2017 (Kisan Uchhatar Madhyamik Vidyalaya Vs. State of U.P.), showing the title of the parties as well as the counsel also in the meantime it is open for the learned Standing Counsel to seek instructions."

Sri P.N. Ojha, learned counsel for the writ petitioner has sought to argue that the orders impugned in the leading writ petition dated 03.07.2023 and 04.07.2023 are patently illegal and cannot be sustained even for a moment, particularly in view of the fact that it is on account of lethargy and the apathy on the part of the respondents, the delinquent teacher is being allowed to be enjoy premium over his own wrong particularly when already a resolution has been passed on 30.08.2011 for dispensation of the services of the delinquent teacher. He further submits that even in fact the order impugned itself recites that on various occasions, only paper work was being done at the level of the District Inspector of Schools and the Secretary of the Commission, as entire documents stood furnished at the level of the petitioner institution and just in order to give undue benefits to the delinquent teacher, the file was not given to be processed and date of the retirement of the delinquent teacher was being traced, so that the entire proceedings stands redundant and deformed post retirement .

Learned counsel for the writ petitioner has invited the attention of the Court towards page no. 59 of the leading writ petition so as to contend that even the Commission had written to the District Inspector of Schools that the papers are being sent back. It is the further submission of the learned counsel for the writ petition that even prior to retirement of delinquent teacher, the papers were returned back on 11.01.2023.

Sri Tarun Shahi, who appears for the U.P. Secondary Education Services Selection Board, Prayagraj on the other hand submits that whatever might be the factual position, but in view of the law laid down in the case of Committee of Management, Jai Jawan Jai Kishan Inter College, Writ A No. 9644 of 2019, decided on 19.08.2019 and the judgment in the case of Bal Krishna Pandey vs. State of U.P. and Others, Civil Misc. Writ Petition No. 20488 of 2007, decided on 30.04.2007, the issue stands crystallized in both the judgments, wherein it has been clearly propounded that in case the proposal for dispensation of services of the delinquent teacher is before the U.P. Secondary Education Services Selection Board, Prayagraj and in the meantime the delinquent teacher superannuates, then no action whatsoever can be taken in that regard.

Sri Shahi has referred to the judgment in the case of Jai Jawan Jai Kishan Inter College (supra), while inviting the attention towards paragraph no.9 and 10, so as to further contend that in the said case, the resolution to terminate the services of the delinquent teacher was dated 25.03.2019, however the delinquent teacher superannuated on 31.03.2019 and thus this Court in the said judgment in paragraph no.21 after referring to various judgments had held that there is no provision in the U.P. Intermediate Education Act, 1921, which provides that the disciplinary proceedings would be continued even after the delinquent retired and sending of the resolution of termination to the District Inspector of Schools / Board even before retirement is of no consequences, as Board has to grant approval on the issue of removal of the delinquent teacher under Section 21 of 1982, Act and the said decision cannot be taken after retirement.

Sri Pradeep Kumar Shahi, learned Additional Chief Standing Counsel, who appears for the State on the other hand adopts the argument of the learned counsel for the Commission.

I have heard the learned counsel for the parties and perused the record.

Undisputedly, the delinquent teacher was subjected to disciplinary proceedings and a resolution was passed on the basis of the inquiry report dated 12.08.2011, on 30.08.2011 proposing to dispense with the services of the delinquent teacher and further the documents were even forwarded by the petitioner, Committee of Management on 02.01.2012. From the sequence of the events as reflected in the order impugned dated 03.07.2023, it appears that on various occasions the proposal was being sought to be returned back at the instance of the District Inspector of Schools on the basis of certain shortcomings, which according to the writ petitioner stood satisfied. It is also not in dispute between the parties that in the interregnum in the meantime on 31.03.2020, the delinquent teacher superannuated and thus, the second respondent, Secretary, U.P. Secondary Education Services Selection Board, Prayagraj did not find any merit in either approving or disapproving the resolution of dispensation of the services of the delinquent teacher. Be that as it may be though the writ petitioner was vigilant towards his rights as it filed Writ - A No. 57130 of 2017. However, as apparent from the order-sheet of the said writ petition in particular the order dated 20.11.2017 that the Board was not constituted and it was likely to be constituted in future but in view of the facts and the circumstances as apparent as well as the law on the said subject interpreting Section 21 of the U.P. Act No. 5 of 1982, this Court is not in a position to accede to the request made by the writ petitioner in terms of the relief, so couched in the writ petition.

Accordingly, both the writ petitions are dismissed.

Order Date :- 16.8.2023

S Rawat