Allahabad High Court
Badri Prasad Mishra vs State Of U.P. Thru. Secy. ... on 24 August, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:56711
Court No. - 8
Case :- WRIT - A No. - 20569 of 2020
Petitioner :- Badri Prasad Mishra
Respondent :- State Of U.P. Thru. Secy. Secondary Education Lko.Andors.
Counsel for Petitioner :- Alok Kumar Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Heard learned counsel for the parties.
Six Assistant Teachers working in the respondent institution were turned out from services by an order of dismissal dated 28.02.1979. Against the resultant vacancies the petitioner along with five others were appointed as Assistant Teachers on 01.09.1981. They joined on their posts and were paid salary regularly.
It so happened that the earlier incumbent challenged their dismissal before this Court by means of Writ Petition No. 210 of 1985 which was dismissed on 31.09.1997. Being aggrieved a Special Appeal was filed bearing No. 204(SB) of 1997 which was allowed on 02.12.1999 wherein directions were issued for reinstatement with consequential benefits. Review Petition was filed by the Committee of Management and also other persons similarly situated as also D.I.O.S. which was also dismissed. A time barred S.L.P. by these very persons was filed which was also dismissed.
In the meantime, the petitioner and five others appointed against the said posts continued in service and petitioner herein retired from services on attaining the age of superannuation on 30.06.2017. Subsequent thereto the earlier incumbents were adjusted against the posts. The petitioner claims payment of post retirement dues as he had worked continuously from 01.09.1981 to 30.06.2017. The D.I.O.S. has passed the impugned order stating that financial benefits can not be paid to two persons against the same post.
A perusal of the judgment of the Division Bench shows that neither appointment of the petitioner herein was set-aside nor any direction was issued for non payment of their service or post retirement dues consequent to its judgment.
It is not in dispute that the petitioner worked continuously from 01.09.1981 to 30.06.2017 when he retired from service. This was in pursuance of an appointment order issued after due process of selection. Nobody appears to have challenged his appointment. Assuming it was there no order setting-aside the appointment, therefore, there is no reason as to why the petitioner be not paid the retirement dues as per rules. As to how the benefits would be paid to the earlier incumbents is an issue to be considered by the Government but based on this the petitioner can not be denied of his dues.
The other five appointed with the petitioner are said to have been adjusted against other posts.
Therefore, the impugned order is quashed. The post retirement dues shall be released to the petitioner as per law within a period of three months from the date a certified copy of this order is submitted.
The recital contained in the impugned order that the appointment of the petitioner is illegal, is absolutely perverse. Merely because the dismissal of the earlier incumbents had been set-aside, it did not render the petitioner's appointment as illegal. The opposite parties ought to have foreseen this situation before hand, having not done so, they have themselves to thank for the situation which has arisen and pay for the same accordingly.
With the aforesaid observations, the writ petition is disposed of. There shall be no orders as to costs.
Order Date :- 24.8.2023
Arun
