Awadhesh Nath Tiwari vs State Of U.P. And 4 Others
2023 Latest Caselaw 23551 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:173663
 
Court No. - 35
 

 
Case :- WRIT - A No. - 13715 of 2023
 

 
Petitioner :- Awadhesh Nath Tiwari
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Anil Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 
Connected With (C-1)
 
Case :- WRIT - A No. - 13716 of 2023
 

 
Petitioner :- Arun Kumar Singh
 
Respondent :- State Of U.P. And 4 Others
 
Counsel for Petitioner :- Anil Kumar Yadav
 
Counsel for Respondent :- C.S.C.
 
With (C-2)
 
Case :- WRIT - A No. - 13721 of 2023
 

 
Petitioner :- Nagendra Singh
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Anil Kumar Yadav
 
Counsel for Respondent :- C.S.C. 
 

 
Hon'ble Vikas Budhwar,J.

1. Since, common question of law and facts are involved in all the wit petitions, which are three in numbers, leading, connected writ petition (C-1) and connected writ petition (C-2), thus they are being decided compositely by a common order.

2. Heard Sri Anil Yadav, learned counsel for the writ petitioners in leading, connected writ petition (C-1) and connected writ petition (C-2), Sri Santosh Kumar Mishra and Sri Vinod Kumar Singh, learned Standing Counsels, who appears for respondent nos.1 to 4 in all the three writ petitions.

3. In view of the order, which is being proposed to be passed, notices are not being issued to the fifth respondent, Committee of Management institution.

4. The case of the writ petitioner in the leading writ petition is that the fifth respondent, Gandhi Smarak Inter College, Hata, Kushi Nagar is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No.5 of 1982 and U.P. Act No. 24 of 1971, stands applicable.

5. According to the writ petitioner, in the leading writ petition, he possesses the academic qualifications of M.A. and B.Ed. and he claims to have been appointed as an adhoc teacher in the institution in question on 29.07.1996 against a short term vacancy, pursuant to the provisions contained under Uttar Pradesh Secondary Education (Removal of Difficulties) second order 1981.

6. As per the writ petitioner, he joined the post in question on 01.08.1996. However, since he was not accorded approval with regard to either payment of salary or appointment, so the writ petitioner claims to have preferred Writ Petition No. 16882 of 1998, which came to be disposed of on 19.07.1999 directing the third respondent in the said writ petition to consider his claim. As per the writ petitioner, the third respondent, District Inspector of Schools, Kushi Nagar proceeded to pass an order dated 03.02.2000 releasing the salary for the writ petitioner. The writ petitioner further submits that he had been accorded selection grade by order dated 02.05.2009, as per the Government Order dated 20.12.2001. It is further the case of the writ petitioner that pursuant to the insertion of Section ? 33G in the U.P. Act No. 1982, the writ petitioner claims to be considered for regularization as his appointment was made within the cut-off date 07th August, 1993 upto 25.01.1999 and he was fully eligible and qualified in all respects. The writ petitioner further submits that his services as an Assistant Teacher in L.T. Grade stood regularized under Section ? 33G of the U.P. Act No. 5 of 1982 on 22.03.2016 and G.P.F. has been paid by virtue of the order dated 31.03.2023 and he superannuated on 31.03.2023 after completion of 26 of his services.

7. According to the writ petitioner, the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur returned the file of the writ petitioner on 27.03.2023 with regard to the payment of pension to the writ petitioner.

8. Prayer in the present petition is for a direction to the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur to release pension of the petitioner on the basis of the entire service undergone by the writ petitioner, post appointment order dated 29.07.1996 and joining on 01.08.1996 and to pay pension and arrears thereon.

9. So far as the connected writ petition (C-2) is concerned, it has been filed by Sri Nagendra Singh with respect to the same institution, which relates to the leading writ petition.

10. According to the writ petitioner, he is possessed with the qualifications of B.A. and B.Ed. and he was also appointed on the same date i.e. 29.07.1996 and he joined on 01.08.1996. He preferred Writ Petition No. 16321 of 1998 with regard to financial approval, the same was accorded on 03.02.2000. He was made entitled to selection grade on 02.05.2009, pursuant to the Government Order dated 20.12.2001. He claims to have been regularized on 22.03.2016, by virtue of the order dated 17.09.2018. G.P.F. has been paid on 31.03.2023 and he superannuated on 31.03.2023. However, his file has also stated to have been returned by the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur on 27.03.2023.

11. Prayer in the said petition is for a direction to the second respondent, Deputy Director (Secondary) Education Gorakhpur, 7th Region, Gorakhpur to release the entire pension taking into account the initial appointment of the writ petitioner.

12. As regards the connected writ petition (C-1) is concerned, the same also relates to the same controversy but with respect to different petitioner and different institution. Here, the writ petitioner is Arun Kumar Singh, who is working in the institution, namely, Vaidik Dharm Inter College, Dumari, Gorakhpur, which has been impleaded as the fifth respondent. Here, the institution is also governed under the provisions of U.P. Intermediate Education Act, 1921, U.P. Act No. 5 of 1982 and U.P. Act No. 24 of 1971 and the writ petitioner claims to be appointed on adhoc basis as an Assistant Teacher in L.T. Grade on 08.08.1994 joined the institution in question on 20.08.1994, pursuant to the appointment order dated 08.08.1994, the approval was not accorded, so the writ petitioner in the connected (C-1) writ petition preferred Writ - A No. 36099 of 1995, which came to be disposed of on 15.05.1999 and approval has been rejected on 01.03.2000, which was again subject matter of challenge in Writ Petition No. 46933 of 2000, which came to be allowed on 02.05.2002 and thereafter finally approval has been accorded on 01.07.2002. The writ petitioner further claims that he was regularized on 22.03.2016 in terms of Section-33G of the U.P. Act No. 5 of 1982. He claims to have been paid G.P.F. on 20.02.2023 and he retired on 31.03.2023, however his file was returned by the second respondent herein, which happens to be Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur.

13. Prayer in the present petition is for a direction to the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur to accord pension to the writ petitioner.

14. Sri Anil Kumar Yadav, learned counsel, who appears for the writ petitioner in all the writ petitions has sought to argue that the issue which the writ petitioner is raising in all the three writ petitions is no more res-integra, as according to him, the matter at the very inception stood decided by a judgment in the case of Sunita Sharma vs. State of U.P. And Others, Writ - A No. 25431 of 2018, decided on 20.12.2018, affirmed by the Special Appellate Court in Special Appeal (D) No. 181 of 2020 (State of U.P. vs. Sunita Sharma), decided on 11.06.2020 as well as in the case of Nand Lal vs. State of U.P., Writ A No. 12070 of 2022, decided on 30.09.2022 as well as the recent judgment in a special appellate Bench, Special Appeal (D) No. 172 of 2023 along with the other judgments decided on 20.04.2023. He thus submits that the period undergone on adhoc basis preceded by regularisation is to be counted for payment of pension in view of the language employee under Rule - 19 of the 1964, Rules.

15. Learned Standing Counsels, who appears in the respective writ petitions on the other hand submits that the issue as to whether the writ petitioner is entitled to be accorded pension computing the services undergone on adhoc basis post regularisation is to be considered at the first instance by the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur, who happens to be the respondent no.2 in all the writ petitions and thus they submit that the writ petitioners may approach the second respondent, while filing a comprehensive representation along with the self attested copy of the writ petition and on the receipt of the same, the second respondent shall go into the issue as well as the applicability of the judgment so sought to be relied by the writ petitioners. They further submit that they do not propose to file any response to the writ petition.

16. Considering the submission of the rival parties as well as the stand taken by them, the writ petitions are being disposed of granting liberty to the writ petitioners to file a comprehensive representation before the second respondent, Deputy Director (Secondary) Gorakhpur, 7th Region, Gorakhpur, while filing individual representation (separately) along with the self attested copy of the writ petition before the second respondent, who shall on the receipt of the same put to notice the writ petitioner and the fifth respondent and thereafter proceed to decide the entitlement of the writ petitioners in the respective writ petitions within a period of three months' from the date of the production of the certified copy of the order bearing in mind the following fundamental and core issues :-

(a) The import and the impact of their regularizations on respective dates;

(b) Their continuance in service;

(c) The import and the impact of the judgment sought to be relied upon the writ petitioners;

(d) Any other ancillary or incidental issue.

17. Needless to point out that the writ petition has been decided without seeking any response, thus passing of the order may not be construed to be an expression that this Court has adjudicated upon the merits of the matter.

18. With the aforesaid observations, the writ petitions stands disposed of.

Order Date :- 28.8.2023

S Rawat