State Of U.P. And 3 Others vs Shobha Ram Dhiman And 2 Others
2023 Latest Caselaw 19815 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:153471-DB
 
Court No. - 21
 

 
Case :- SPECIAL APPEAL No. - 394 of 2023
 

 
Appellant :- State Of U.P. And 3 Others
 
Respondent :- Shobha Ram Dhiman And 2 Others
 
Counsel for Appellant :- Rama Nand Pandey
 
Counsel for Respondent :- Chandra Shekher Singh
 

 
Hon'ble Manoj Kumar Gupta,J.

Hon'ble Donadi Ramesh,J.

1. The instant intra-court appeal is directed against the order and judgement dated 01.11.2022 passed by learned Single Judge in Writ-A No.1299 of 2020 Shobha Ram Dhiman vs. State of U.P. and others. The writ petition was filed by opposite party No.1, Shobha Ram Dhiman (the writ-petitioner) challenging the order dated 30.10.2019 passed by the Regional Committee, Saharanpur Region, Saharanpur (respondent No.3). The order was quashed and the writ petition was allowed with the following directions :-

"23. Thus, the writ petition is allowed with the following directions :

(1) Impugned order dated 30.10.2019 is quashed.

(2) Mandamus is issued to the respondents to regularise the petitioner under Section-33F of the Act.

(3) All arrears of salary for the period 02.01.2018 to 31.03.2020 (excluding any salary payment that may have been made for that period) may be computed and paid out within a further period of three months.

(4) All retiral dues be paid out to the petitioner within the same time period.

(5) All payments that may be computed in compliance of this order may carry interest payment @ 8% from the date of amount becoming due till the date of actual payment."

2. Sri Rama Nand Pandey, learned Additional Chief Standing Counsel confined the challenge to direction no.2 whereby learned Single Judge has directed the respondents to regularise the petitioner in service under Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 (for short hereinafter referred to as 'the Act'). It is submitted that the direction issued by the writ-court is contrary to the provisions of clause (c) of sub-section (1) of Section 33-F. For sake of convenience the relevant part of Section 33-F is extracted below:-

"33-F. Regularisation of appointment against short term vacancies --- (1) Any teacher who,---

(a) was appointed by promotion or by direct recruitment in the lecturer's grade or trained graduates grade on or after May 14, 1991 but not later than August 6, 1993 against a short term vacancy in accordance with Paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) (Second) Order, 1981, as amended from time to time, and such vacancy was subsequently converted into a substantive vacancy;

(b) possesses the qualification prescribed under, or is exempted from such qualifications in accordance with the provisions of the Intermediate Education Act, 1921;

(c) has been continuously serving the institution from the date of such appointment upto the date of the commencement of the Uttar Pradesh Secondary Education Services Selection Board (Amendment) Act, 2001;

(d) has been found suitable for appointment on a substantive capacity by the Selection Committee referred to in Clause (a) of sub-section (2) of Section 33-C in accordance with the procedure prescribed under Clause (b) of the said sub-section; shall be given substantive appointments by the Management."

3. The submission is that the petitioner had not regularly worked in the Institution and, therefore, he was not entitled to regularisation although it is not disputed that the other requirements of the said provision were duly fulfilled by him. For appreciating the controversy the background facts may be noted as follows :-

(A) The petitioner was appointed on a short a term vacancy on the post of Assistant Teacher on 8.4.1993, the then incumbent Subhas Singh having gone on leave. The financial approval to the appointed was granted by the Accounts Officer on 30.6.1993. The petitioner was not paid his salary from the date of joining the service i.e., 24.3.1993 and this led to filing of Writ Petition No.27233 of 1993, wherein an interim order was passed in favour of the petitioner on 11.8.1993 directing for payment of his current salary.

(B) The Committee of Management instead of complying with the above direction appointed one Satyapal Singh in place of the petitioner on 20.2.1994. The petitioner protested against the same and ultimately the District Inspector of Schools, by order dated 13.4.1994 disapproved the appointment of Satyapal Singh and again declared the appointment of the petitioner to be valid. Satyapal Singh challenged the order dated 13.4.1994 in Writ Petition No.13573 of 1994 and the operation of the order dated 13.4.1994 was stayed and at the same time he was permitted to represent his case to the District Inspector of Schools. In pursuance thereof, he represented to the District Inspector of Schools but his claim was rejected on 24.5.1994. Satyapal Singh again approached this court challenging the order dated 24.5.1994. Both the writ petitions filed by him were disposed of by a common order dated 31.3.1995 granting liberty to the parties to seek appropriate remedy under the Removal of Difficulties order.

(C) By order dated 17.10.1995 the Deputy Director of Education decided the dispute against the petitioner. The petitioner filed Writ Petition No.32506 of 1996 being aggrieved thereby. It was disposed of by order dated 2.4.1997 directing the petitioner to approach the District Inspector of Schools. He rejected the claim of the petitioner by order dated 3.5.1997 on the reasoning that the petitioner had not worked in the institution. The finding was returned on perusal of attendance register alone. The petitioner filed Writ Petition No.19063 of 1997. It was allowed by order dated 2.1.2018 in following terms :-

"Therefore, after consideration of the entire material on record, it is clear that the impugned order dated 03.05.1997 passed by the respondent no.1 was not passed in accordance with law and as per the direction of this Court dated 02.04.1997 in Writ Petition No.32506 of 1995. It was passed only on the basis of Attendance Register produced by the Principal of the Institution, who was not favourably inclined towards the petitioner, as clear from the Counter Affidavit dated 23.09.1993 of the Manager of the Institution, Counter Affidavit dated 21.03.1996 of the respondent no.1 filed in Writ Petition No.32506 of 1995 clearly admitting the due selection and grant of financial sanction to the petitioner. Further, the rival claim of Sri Satya Pal Singh having been extinguished, their remains no dispute towards his appointment on the post in question. The repeated approval of the appointment of the petitioner on record, as pointed out by the petitioner from the record stated above prove the fact that the findings recorded by the respondent no.1 in the impugned order dated 03.05.1997 are illegal and the order is hereby quashed.

Since the petitioner is still working, he is entitled to be considered for regularization of his services as per Section -33-E of the U.P. Act No.5 of 1982, as per the prayer made by the Counsel for the petitioner.

The writ petition is allowed. No orders as to costs."

(D) The petitioner thereafter filed a modification application and where an order was passed on 8.3.2018 directing for payment of 50% of the arrears of salary. The main order and the order passed on modification application were challenged by the Committee of Management and the District Inspector of Schools in two separate Special Appeals (Special Appeal Defective No.583 of 2018 and 584 of 2018). Both the Special Appeals were partly allowed by order dated 12.11.2018 on the following terms:-

"We, therefore, partly allow the appeal and set aside the order dated 8th March, 2018 passed on the modification application but at the same time we direct that the respondent no. 1 would be entitled to all consequential benefits in view of the order dated 3rd May, 1997 having been quashed namely his right to receive salary which we reiterate as 50% of the arrears with effect from the date of the financial sanction granted by the Account Officer on 30th June, 1993. The respondent no.1 was wrongfully prevented from discharging his duties in the Institution as his appointment was valid. This would also be in consonance with law, inasmuch as, the District Inspector of Schools had been intimated for grant of approval and the period of one week had expired as contemplated under the Second Removal of Difficulties Order resulting in the deemed approval of the respondent no. 1. Consequently, the respondent no. 1 would be entitled to 50% of the salary from the said date and the respondent no. 1 shall be allowed to function in the Institution and be paid his salary accordingly.

It will be open to the competent authority to consider the question of regularization and consequential continuance of the respondent no. 1 in the Institution that may be permissible as per the Rules framed under the U.P. Secondary Education Services Selection Board Act, 1982 which shall be done within a period of three months. The appeal is therefore partly allowed to the aforesaid extent and the judgment dated 02.01.2018 stands modified accordingly."

(E) The District Inspector of Schools being aggrieved thereby preferred Special Leave to Appeal (C) No.3407 of 2019 before the Supreme Court but it was dismissed by order dated 8.2.2019. Thereafter a Review Application was filed by him but that too was dismissed on 12.12.2019.

(F) The State even after the dismissal of Special Leave to Appeal on 8.2.2019 did not permit the petitioner to join the service, compelling him to file Contempt Application (Civil) No.3646 of 2018. The Contempt Court issued notices to the District Inspector of Schools and other State Officers, who were alleged to be in contempt. Even then the petitioner was not permitted to join the service. Ultimately, on 14.10.2019 the Contempt Court directed the State Officers to remain present on 5.11.2019 to answer the charges. Thereafter, on 16.10.2019 the petitioner was permitted to join and 50% of the salary as directed by the Special Appeal Court was paid to him.

4. The next round of litigation started when the claim of the petitioner for regularisation in service came to be rejected by the Regional Committee on various grounds touching upon the validity of the appointment of the petitioner in service and also for the reason that the petitioner had actually not worked and therefore, was not entitled to the benefit of Section 33-F. The petitioner being aggrieved by the order of Regional Committee dated 30.10.2019, challenged the same in writ petition and which has been allowed by the learned Single Judge by order impugned in the instant appeal.

5. The learned Single Judge has noted in its order that first four grounds which relates to the alleged illegality in the appointment of the petitioner are no more open, the same having attained finality in the previous round of litigation. It has been noted by the learned Single Judge and rightly so that in previous round of litigation, the question relating to validity of initial appointment of the petitioner was very much in issue. It was also considered and adjudicated upon and the Division Bench which decided the Special Appeal recorded a specific finding that "the petitioner was wrongly prevented from discharging the duties in the institution as his appointment was valid." The learned Single Judge also rightly held that the Division Bench deciding the Special Appeal had held that once the appointment of the petitioner against short term vacancy was duly intimated to the District Inspector of Schools and the period of one week expired as contemplated under the Second Removal of Difficulties Order, it resulted in deemed approval of the appointment of the petitioner. These findings have attained finality with the dismissal of Special Leave to Appeal. Therefore, it was no more open to the respondents to rake up the issue of validity of his appointment even on any additional ground or to deny his claim for regularisation on the aforesaid score.

6. The learned Single Judge has thereafter considered the second ground for denying the benefit of regularisation to the petitioner. It was with regard to the petitioner having not actually worked in the institution. The learned single judge has observed that once it was held that appointment of the petitioner was valid and categorical finding was also returned that it was the respondents who prevented him from discharging his duties, his claim for regularisation could not be denied on the ground that he had not actually worked. The learned Single Judge rightly held that the direction for payment of salary from date of approval would have the effect of the petitioner being treated, though notionally, to be in continuous service. The award of salary of 50% only was an exercise of power to mould relief to balance equities. It does not in any manner belittle his status.

7. Shri Rama Nand Pandey, learned Additional Chief Standing Counsel appearing for State submitted that since after the initial appointment of the petitioner, Satyapal Singh had also worked for some period and therefore, the Regional Committee was right in holding that the working of the petitioner was not on continuous basis. He also submitted that since the petitioner had not actually worked in the institution, he cannot be treated to be in continuous service, nor can be held entitled to regularisation.

8. Both the submissions, in our considered opinion, do not stand the scrutiny of law. It has been specifically held by the Division Bench in its judgment dated 12.11.2018 that the appointment of the petitioner should be treated to be valid from the date of grant of financial approval. The petitioner was also granted all consequential reliefs as a result of the order dated 3.5.1997 having been quashed by the writ court in the previous round of litigation. He was also held entitled for consideration of his claim for regularisation. The short duration in which Satyapal Singh had allegedly worked against the said post, is not found to be legal nor he is in picture and the only claimant for the post under consideration is the petitioner. It is not open to the State or the Committee of Management, which had prevented the petitioner from discharging his duties, to defeat his claim of regularisation on the pretext that he had not actually worked. In fact, as noted above, it was only after the contempt court fixed a date for the State officials to appear and answer to the charges of contempt that the petitioner was permitted to join his duties and was paid his salary. The learned Single Judge is perfectly right in holding that the petitioner would be treated to have notionally worked since the date of his initial appointment.

9. Since initial appointment of the petitioner was found to be valid and finding has been returned by learned Single Judge that he should be treated to have worked continuously since the date of his initial appointment therefore, we find no illegality in the direction issued by the writ-court to the respondents to regularise him under Section 33-F, as remitting the matter for a fresh consideration by the Regional Committee would have been a futile exercise.

10. For the reasons stated above, we find no merit in the instant appeal.

11. The appeal is accordingly dismissed.

Order Date :- 31.7.2023

skv/vs

(Donadi Ramesh, J.) (Manoj Kumar Gupta, J.)