Ram Nayan Yadav vs State Of U.P.Through The Secy ...
2023 Latest Caselaw 18440 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:47859
 
Court No. - 5
 

 
Case :- WRIT - A No. - 2696 of 2005
 

 
Petitioner :- Ram Nayan Yadav
 
Respondent :- State Of U.P.Through The Secy Secondary Education
 
Counsel for Petitioner :- Dr L.P.Misra,B.K. Yadav,C.S.S. Yadav
 
Counsel for Respondent :- C.S.C.,Shivji Shukla
 

 
Hon'ble Irshad Ali,J.

1. Heard Dr. L.P. Misra, learned counsel for the petitioner assisted by Shri G.C. Verma, learned Advocate, Ms. Neha Chadda, learned Advocate and Ms. Aarti Bali, learned Advocate and Shri R.S. Tomar, learned Standing Counsel for the respondent nos.1 and 2.

2. By means of the present writ petition, the petitioner is challenging orders dated 24.3.2005 and 28.9.2004 passed by opposite party no.4 as Anneuxres 1 and 2 to the writ petition with further prayer to issue a writ, order or direction in the nature of Mandamus commanding the opposite parties to allow the petitioner to continue on the post of Lecturer in Education in Chunni Lal Inter College, Chhittey Patti, Sultanpur, till regularly selected candidate comes and joins and pays him regular salary month by month.

3. Factual matrix of the case is that there is a recognized institution under the name of Chunni Lal Inter College, Chhittey Patti, Sultanpur. The provisions of U.P. Intermediate Education Act, 1921, provisions of U.P. Highschool Intermediate Colleges (Payment of Salary) to the Teachers and Other Employees Act, 1971 inasmuch as the provisions of U.P. Secondary Education Service Selection Board Act, 1982 amended uptodate are applicable to the said institution.

The Management of the College sent letter to the District Inspector of Schools for creation of post in Lecturer in Education and for sending a candidate duly selected by the Commission. When no candidate was recommended, the vacancy was advertised by the Committee of Management in the daily newspaper Amrit Prabhat inviting application in the selection and appointment. On the basis of applications filed by the candidates selection was held and the petitioner being placed at serial no.1 in the select list was selected by the Selection Committee.

The petitioner issued appointment letter on 16.1.2021. In pursuance of the appointment letter, the petitioner submitted his joining report. Papers in regard to selection and appointment was duly submitted to the DIOS by the Management of the College. When no salary was paid to the petitioner, he filed Writ Petition No.2598 (SS) of 2001 before this Court for payment of salary and also for direction to the opposite party nos.1 and 2 to sanction the post of Lecturer of the institution.

In the aforesaid writ petition, an interim order was passed by this Court on 25.4.20023, operative portion of which is extracted hereinunder:

"....................

.............

Keeping the principle of law laid down by the Supreme Court in view, it is provided that the opposite parties shall consider the petitioners' request for creation of a post of Lecturer in Education Department from January, 2000 within three months from today and until further orders of the Court, they shall also arrange payment of salary to Ram Nayan Yadav which shall be subject to final orders of this Court. The payment of monthly remuneration will not, however, validate or regularise his appointment which shall have to be eventually made in accordance with the prescribed procedure and rules."

Opposite party no.4 sent papers for creation of post and also for payment of salary to the petitioner on 12.3.2004. When nothing was done in pursuance to the impugned order dated 25.4.2003 then the petitioner preferred contempt petition before this Court wherein it was directed to Mr. Sanjay Mohan to ensure payment of salary to the petitioner within one month. Director of Education wrote a letter to the DIOS calling information on certain points on 15.5.204. The Committee of Management submitted reply on 1.6.2004 on behalf of the College.

On 2.8.2004, in the contempt petition, further time was sought by the opposite parties for making compliance of the interim order. The Director of Education (Secondary) vide order dated 17.8.2004 passed orders directing the payment of salary to the petitioner against the post of Lecturer in History. The order passed by the District Inspector of Schools on 10.9.2004 directing the petitioner to teach the subject of History also along with the post of Lecturer in Education and also passed order for payment of salary.

Information was sent by the opposite party no.4 to the opposite party no.2 for the payment of salary to the petitioner on 16.9.2004. The Committee of Management passed an order on 20.9.2004 which is impugned in the writ petition. On 23.11.2004, Director of Education created the post of Lecturer in Education. Director of Education (Secondary) passed an order for payment of salary to the petitioner on 17.1.2004.

On 7.3.2005, the order passed by the DIOS for payment of arrears of salary to the petitioner. DIOS sent reminder to the opposite party no.2 for sending salary bill of the petitioner. Opposite party no.4 sent salary bill of the petitioner from January, 2001 to May, 2003. The DIOS sent letter on 23.3.2005 addressed to the opposite party no.4 directing to send salary bill for the month of June, 2001, June, 2002 and June, 2003 of the petitioner. The opposite party no.4 passed an order dated 24.3.2005 terminating the service of the petitioner. Hence this writ petition.

4. Assailing the impugned order, submission of learned counsel for the petitioner is that once the petitioner was permitted to continue to hold the post of Lecturer in History along with post of Lecturer in Education directing the payment of salary, there is no justification in terminating the service of the petitioner.

By means of the impugned order (Annexure No.2 to the writ petition), the Committee of Management limited the appointment of the petitioner till the end of academic session 2004-05. In this regard, submission of the learned counsel for the petitioner is that in Writ Petition No.2095 (SS) of 2000 (Rakesh Chandra Mishra v. State of U.P. and others), this Court held that the appointment made under 16-E(11) shall continue to operate till regularly selection candidate comes and joins. The matter went upto the Hon'ble Supreme Court wherein in exercise of powers under Article-142 of the Constitution of India, a proceeding was initiated of fresh selection permitting those teachers who were appointed in exercise of power under Section 16-E(11) and on ad hoc basis. Selection has been completed and regular appointments are awaited.

5. Next submission of Dr. Misra, learned counsel for the petitioner is that once the post of Lecturer in Education has been sanctioned, there is no justification to terminate the service of the petitioner. He is entitled to continue till the regularly selected candidate comes and joins.

6. Learned counsel for the petitioner next submits that once the post has been duly sanctioned, there is no justification on the part of the opposite parties to limit the appointment of the petitioner till the end of academic session of the year 2004-05 or to terminate the services of the petitioner for no valid justification.

7. On the other hand, learned Standing Counsel submits that there is no illegality in the orders impugned and the orders do not suffer from infirmity or illegality and are just and valid order.

8. Having heard the submissions advanced by learned counsel for the parties, I have perused the material on record.

9. On perusal of the record, it is evident that the petitioner was paid salary with effect from 16.1.2001 to 31.3.2005. It is relevant to record that the Director of Education (Secondary) created the post of Lecturer in Education on 23.11.2004 and the salary to the petitioner was paid even after creation of post of Lecturer in Education.

10. In regard to limiting the appointment of the petitioner vide Annexure No.2 by the respondent no.4 is absolutely illegal in view of the Division Bench's judgment of this Court Writ Petition No.2095 (SS) of 2000 (Rakesh Chandra Mishra v. State of U.P. and others), wherein this Court permitted the appointment made under Section 16-E(11) to continue till regularly selected candidate comes and joins. Therefore, the impugned orders are not sustainable in law.

11. The service of the petitioner has also been terminated vide the impugned order as Annexure no.1 to the writ petition is also erroneous in nature. The reasons assigned in the impugned order is based on the order passed vide Annexure No.2 dated 20.9.2004. Once the post of Lecturer in Education has been created vide order dated 23.11.2004, there is no justification not to continue the service of the petitioner till regularly selected candidate comes and joins.

12. The order of termination of the petitioner is based on conjecture and surmise as no cogent reason whatsoever has been recorded in passing the order of termination. The reason assigned in the impugned order of termination is that the appointment under Section 16-E(11) is till the end of the academic session. On expiry of the academic session, the service is liable to be terminated. This assumption is contrary to the law laid down by this Court in Writ Petition No.2095 (SS) of 2000 (Rakesh Chandra Mishra v. State of U.P. and others).

13. In view of the reasons recorded above, this writ petition succeeds and is allowed. Impugned orders dated 24.3.2005 and 28.9.2004 passed by opposite party no.4 as Anneuxres 1 and 2 to the writ petition are hereby quashed.

14. However, the petitioner shall be reinstated in service with all consequential benefits in service.

Order Date :- 21.7.2023

GK Sinha