Allahabad High Court
Gauri Shankar Pathak vs State Of U.P. And 4 Others on 19 July, 2023
Bench: Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:143813
Court No. - 35
Case :- WRIT - A No. - 11478 of 2023
Petitioner :- Gauri Shankar Pathak
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Sankalp Narain,Srivats Narain
Counsel for Respondent :- C.S.C.
Hon'ble Vikas Budhwar,J.
Heard Sri Sankalp Narain, learned counsel for the petitioner and Sri P.K. Shahi, learned Addl. Chief Standing Counsel, who appears for the Respondents 1 to 4.
In view of the order, which is being proposed to be passed today, notices are not being issued to the fifth respondent.
The case of the writ petitioner is that the fifth respondent-institution, namely, Sri Harish Chandra Intermediate College, Varanasi is an institution governed under the provisions of U.P. Intermediate Education Act 1982 and the regulations framed therein. It is further the case of the petitioner that consequent to the short term vacancy arisen on account of grant of ad hoc promotion to one Sri Rameshwar Dutt Shukla in the year 1994 to the post of Lecturer from the post of Assistant Teacher, the exercise was undertaken to fill up the resultant vacancy pursuant whereof, the petitioner was appointed on a short term vacancy on ad hoc basis as per the Second Removal of Difficulties Order as Assistant Teacher in the fifth respondent-institution on 20.06.1994. Since approval was not being granted by the District Inspector of Schools, the writ petitioner herein preferred Writ-A No.710 of 1995, which came to be disposed off on 10.01.1995 while directing the educational authorities to pass reasoned and speaking order in pursuance thereof, the matter was referred by the District Inspector of Schools Varanasi to Director of Education, Prayagraj, who in turn on 16.12.1995 accorded approval to the appointment of the writ petitioner. As per the writ petitioner, with the advent and insertion of Section 33-G in the Commission Act 1982, now, the exercise was to be undertaken considering the claim of incumbents, who were suitable, eligible and fell within the cut off date and pursuant whereof on 31.10.2017, an order was passed whereby the writ petitioner was regularized on 22.03.2016. It is further the case of the writ petitioner that he retired on 30.06.2023, however, when the writ petitioner staked his claim for being granted pension, then the same has been turned down by the third respondent, District Inspector of Schools, Varanasi by virtue of the order dated 23.02.2023 on the premise that the regularization of the petitioner has been made with effect from 22.03.2016, thus, he does not possess the qualifying service in order to entitle him for being accorded pension. Learned counsel for the petitioner has invited the Court towards the statutory provisions contained under the U.P. State Aided Educational Institution Employees Contributory Fund-Insurance and Pension Rules, 1974 as well as the provisions of the 1982 Act so as to argue that even in fact, the post-regularization, the writ petitioner was allowed to continue till his date of superannuation and even in fact, the probation period was also successfully completed by the writ petitioner and further the ad hoc service was followed by regularization that too without any break and interruption. It is the further submission of the writ petitioner that the said issue regarding the entitlement of the writ petitioner that the said issue regarding the entitlement of the writ petitioner for payment of pension stands covered and the said issue is no more non res integra, as recently a Division Bench of this Court in Special Appeal Defective No. 172 of 2023, State of U.P. Vs. Surendra Singh and others while affirming the judgment in the case of Sunita Sharma vs. State of U.P. of the learned Single Judge affirmed of the learned Single Judge affirmed by the Appellate Court in Special Appeal Defective No.181 of 2020 (State of U.P. Vs. Sunita Sharma) decided on 11.06.2020 as well as the judgment in the case of Nand Lal Vs. State of U.P. and others, Writ-A No. 12070 of 2022 dated 30.09.2022 decided on 20.04.2023 has settled the controversy in favour of the writ petitioner.
Prayer in the present petition is for quashing of the order and for directing the respondents to accord consideration for payment of pension to the writ petition.
Sri P.K. Shahi, learned Addl. Chief Standing Counsel on the other hand submits that the pleadings in the writ petition as well as the arguments advanced by the writ petitioner proceeds upon the fact that the writ petitioner was appointed on ad hoc basis against the short term vacancy and thereafter his services stood regularized by virtue of the order of the education authority. He does not dispute the fact that there was no interruption in the service of the writ petitioner. He also does not dispute the legal proposition of law so canvassed by the writ petitioner. According to him, the matter need to be revisited by the second respondent, Deputy Director of Education (Pension), Varanasi Region, Varanasi and according to him, the order impugned be set aside and the matter be remitted back to the second respondent to pass a fresh and speaking order. It is further the submission of the learned Standing Counsel that he does not propose to file any response to the writ petitioner. According to him, since the relationship of the writ petitioner with the employer, fifth respondent, Committee of Management stood eliminated pursuant to the retirement and in case, any document is required from the fifth respondent, then he shall be put to notice in advance in writing and thus, notices upon fifth respondent be waved.
Considering the submissions of the rival parties as well as the stand taken by them, the writ petition is allowed. The order dated 22.3.2023 passed by the third respondent, District Inspector of Schools, Varanasi is set aside. The matter stands remitted to Deputy Director of Education (Pension), Varanasi Region, Varanasi to decide the controversy afresh in the light of the observations made hereinabove. Normally, the matter would have been remanded back to the third respondent, District Inspector of Schools, Varanasi, but as according to learned counsel for the writ petitioner, as Sri P.K. Shahi, learned Addl. Chief Standing Counsel, who appears for the official respondents, now the matter is to be decided by Deputy Director of Education (Pension), Varanasi Region, Varanasi, thus the second respondent shall accord consideration to the claim of the writ petitioner within a period of two months from the date of production of certified copy of the order.
With the aforesaid observations, the writ petition stands disposed off.
Order Date :- 19.7.2023
N.S.Rathour
