Allahabad High Court
Smt. Nirupma Singh vs State Of U.P. Thru ... on 1 March, 2023
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 18
Case :- WRIT - A No. - 35701 of 2019
Petitioner :- Smt. Nirupma Singh
Respondent :- State Of U.P. Thru Prin.Secy.Secondary Edu. Lucknow And Ors.
Counsel for Petitioner :- Shiwa Kant Tiwari,Ajay Pratap Singh,Prafulla Tiwari,Puttu Lal Misra
Counsel for Respondent :- C.S.C.
Hon'ble Pankaj Bhatia,J.
Present petition has been filed by the petitioner challenging the order dated 21.08.2019 whereby a decision has been taken holding that the regularization and the initial appointment of the petitioner itself is contrary to the rules.
It is further decided that the services rendered by the petitioner prior to regularization cannot be counted, thus, the claim of the petitioner for payment of pension was rejected.
The facts, in brief, are that on account of post of History Lecturer becoming vacant, the petitioner was appointed by the Committee of Management in terms of the provisions of the Second Removal of Difficulties Order, 1981 and the petitioner joined in pursuance to the said appointment order on 01.11.1995. As the DIOS was not taking any action with regard to the payment of salary to the petitioner, the petitioner filed Writ Petition No.2274 (SS) of 1996 wherein directions were issued to the DIOS to consider the claim of the petitioner for payment of salary. The said writ petition was finally disposed off on 09.02.2015. In the meanwhile, the State Government introduced the provisions of 33G of the Uttar Pradesh Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act') wherein provisions were made for regularization. The petitioner claiming that his appointment was approved by the DIOS applied for consideration and the papers were forwarded, and ultimately it is claimed that the Regional Committee in its meeting decided to regularize the services of the petitioner on 19.04.2017.
It is stated that the petitioner retired on 31.03.2018 and thereafter raised a claim for payment of pension. As the same was not being paid, the petitioner filed Writ Petition No.25751 (SS) of 2018 wherein directions were issued for considering the claim of the petitioner for pension.
While considering the said claim in the light of the directions given, the impugned order came to be passed holding that the appointment of the petitioner as well as the regularization was irregular and thus, the petitioner was not entitled for any pension as claimed by the petitioner.
Contention of learned counsel for the petitioner is that the regularization of the petitioner was done by a committee constituted under the provisions of 33C of the Act and the regularization order was passed in view of the mandate of Section 33G; he argues that there was no challenge to the order of regularization, as such, the Deputy Director of Education could not have passed the order of the nature which has been passed. He further argues that once a decision has been taken by the committee, the Deputy Director of Education has no jurisdiction to pass an order holding that the order of regularization was improper.
He argues that the petitioner would be entitled for the benefit of pension when the services of the petitioner rendered prior to the date of regularization are counted as qualifying service in the light of the judgment of the Hon'ble Supreme Court in the case of Prem Singh v. State of U.P. & Ors.; (2019) 10 SCC 516 as also affirmed after taking into consideration the new Act in Special Appeal Defective No.158 of 2021 (State of U.P. & 2 Ors. v. Satya Prakash Singh and Another) vide judgment dated 19.02.2021.
Shri Ran Vijay Singh, learned counsel for the respondent has placed reliance on a Full Bench judgment of this Court in Writ Petition No.25955 (SS) of 2017 (Ram Das Yadav v. State of U.P. & Ors.) passed 08.11.2021 wherein the Full Bench was of the view that only there is a challenge to the Uttar Pradesh Qualifying Service for Pension and Validation Act, 2021, the issues cannot be gone into and they would be governed by the Validation Act of 2021.
It is argued that even otherwise, the vires of the Validation Act are under challenge and are subjudice in Writ Petition No.23912 (MB) of 2020 and thus, the contention of the petitioner to that extent cannot be accepted till the said issue is decided and without there being a challenge to the Validation Act.
Learned counsel for the petitioner in response to the said submission argues that this very Court in the case of Dr. Shyam Kumar v. State of U.P. & Ors., (Writ - A No.8968 of 2022) decided on 17.02.2023 has read down the provisions as contained in the Validation Act and has issued directions that the services rendered prior to the regularization would be counted.
Considering the submissions as well as the mandate of Section 33G read with Section 33C of the Act, it is clear that the claim of regularization is considered by a committee as provided under Section 33C of the Act. Once an order is a passed by the committee, the Deputy Director of Education has no jurisdiction to hold that the regularization was an improper exercise of power, more so, when there is no challenge to the regularization order.
Insofar as the submission of learned counsel for the respondent that the claim can be considered only when the vires are under challenge, once the provisions are read down by this Court in the case of Dr. Shyam Kumar (supra), the said submission loses significance.
At this stage, Shri Ran Vijay Singh, learned counsel for the respondent argues that the decision impugned in the present writ petition was taken in the light of the directions given by this Court in the order dated 22.02.2019 passed in Writ Petition No.25751 (SS) of 2018.
However, a pointed query was raised from Shri Ran Vijay Singh as to whether an order, but for the directions dated 22.02.2019 would be without jurisdiction or not, he states that he is not in a position to answer the said question as the order has been passed based upon the judgment of this Court.
I have already held that irrespective of any direction, the authority will not assume jurisdiction which is not vested by the provisions of the statute and thus, the order is wholly without jurisdiction.
In view of the above, following the judgment in the case of Dr. Shyam Kumar (supra), the writ present petition is allowed.
Order dated 21.08.2019 (Annexure - 2) is quashed holding the same to be without jurisdiction and clearly in conflict with the mandate of Section 33G of the Act.
Respondents are directed to calculate the services rendered by the petitioner prior to the date of regularization as qualifying service and compute the pension by adding the said services as qualifying service and pay the same to the petitioner to which he is entitled, in accordance with law within four months.
Order Date :- 1.3.2023
nishant
