Allahabad High Court
Dhirendra Pratap Singh And ... vs State Of U.P. And 2 Others on 3 October, 2023
Bench: Vikas Budhwar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:188841
Court No. - 35
Case :- WRIT - A No. - 13395 of 2023
Petitioner :- Dhirendra Pratap Singh And Another
Respondent :- State Of U.P. And 2 Others
Counsel for Petitioner :- Alok Mishra
Counsel for Respondent :- C.S.C.
Hon'ble Vikas Budhwar,J.
On the oral request of the learned counsel for the writ petitioner, the Joint Director of Education (Higher) / Regional Higher Education, Prayagraj shall be impleaded as the fourth respondent.
Heard Sri Alok Mishra, learned counsel for the petitioners, who are two in number, and Sri R.P. Dubey, the learned Addl. Chief Standing Counsel, who appears for Respondents 1, 2 and 4.
In view of the order, which is being proposed to be passed today, notices are not being issued to the third respondent.
The case of the writ petitioner is that the third respondent Pratap Bahadur P.G. College, Pratapgarh is a Post-Graduate Institution affiliated to Rajendra Singh (Rajju Bhaiya) University, Prayagraj and is governed under the U.P. State Universities Act, 1973, the First Statutes framed thereto, the UGC Regulations and the Government Orders are applicable therein. The case of the writ petitioner no.1 as asserted in paragraph-5 of the writ petition is that he was appointed as Routine Clerk vide order dated 29.09.2000 and the petitioner no.2 had been appointed as Routine Clerk vide order dated 26.07.2001 in the third respondent Institution. It is further the case of the writ petitioners that the post of the Routine Clerk falls under the cadre of Group- 'C' in pursuance of the Government Order dated 14.03.1984. According to the writ petitioner on the basis of the recommendation of the Pay Commission 2008 in pursuance of the letter No. 12/2015-Ve.Aa.-2-183/Das-62(M)/2008 dated 24.03.2015 the applicability of the Assured Career Progression Scheme (hereinafter referred as 'ACP') for non-teaching staff stood attracted in the shape of Government Orders conferring the said benefits post-completion of 10, 16 and 24 years of service. As per the writ petitioner, consequential orders came to be passed from time to time and on 03.11.2015 also. In paragraph-9 it is further stated that pursuant to the Government Order dated 16.12.2013, the ACP was made applicable to the technical educational institutions at the financial stages first, second and third after satisfactory completion of 10, 16 and 26 years of service in place of 10, 18 and 26 years of service respectively. According to the writ petitioners, the writ petitioners were paid the first ACP and so far as the second ACP is concerned, pay-fixation took place with regard to the writ petitioners on 18.01.2017 and 31.10.2017. However, according to the writ petitioners, on 21.07.2023, a communication had been issued under the signatures of the Joint Director (Higher)/ Regional Higher Education Officer, Prayagraj addressed to the third respondent, whereby unilaterally, without putting the writ petitioner to notice not only recovery is being sought to be made, but also there has been re-fixation, that too to the detriment of the writ petitioners. Learned counsel for the writ petitioners has sought to rely upon paragraph-11 of the writ petition so as to further contend that the said exercise is in violation of the principles of natural justice and the learned counsel for the writ petitioners also places reliance on various judgment as well as the judgment in the case of State of Punjab Vs. Rafiq Masih, (2015) 4 SCC 334 and Civil Appeal No.7115 of 2010 (Thomas Daniel Vs. State of Kerela and others).
Prayer in the present petition is for quashing of the order dated 21.07.2023 issued by the fourth respondent.
Sri R.P. Dubey, learned Addl. Chief Standing Counsel, on the other hand submits that though it appears from the order which is the subject matter of challenge dated 21.07.2023 is not an actual order, but it is a communication being made by the Joint Director (Higher Education)/ Regional Higher Education, Prayagraj, to the second respondent and according to him, the order does not speaks of that the writ petitioners were put to notice, thus according to him, in the fitness of the matter, the order in question be treated to be a show cause notice and the writ petitioner may submit his objection to the same and the fourth respondent shall decide the same strictly in accordance with law within the time bound period. He further submits that he does not propose to file any response to the writ petition.
To the said submission, learned counsel for the writ petitioners has no objection to the same and gracefully accepts the same.
Ordinarily, in normal circumstances, this Court could have undertaken the task of deciding the case on merits, however, owing to the fact that a statement has been made by Sri R.P. Dubey, learned Addl. Chief Standing Counsel that the matter needs determination at the first instance by the fourth respondent and the writ petitioner may represent his cause before the fourth respondent, thus this Court is not addressing the merits of the matter leaving it open for the fourth respondent to pass an appropriate order strictly in accordance with law.
Accordingly the writ petition is being disposed off in the following terms: (a) the communication dated 21.07.2023 issued under the signature of the fourth respondent addressed to the second respondent, Director, Higher Education (Directorate), U.P. Sarojini Naidu Marg, Prayagraj shall be treated to be a show cause notice; (b) the writ petitioner shall prefer a comprehensive representation accompanied with self-attested copy of the writ petition by 09.10.2023; (c) on the receipt of the said representation, the third respondent shall be put to notice the third respondent; (d) the orders be passed by 19.10.2023; (e) while considering the case of the writ petitioner, the fourth respondent shall bear in mind the following fundamental and core issues: (a) the applicability of the Government Order/ Circulars providing for ACP; (b) the entitlement of the writ petitioner for grant of ACP(s); (c) the applicability of the judgment in the case of Rafiq Masih (supra), Thomas Daniel (supra) and other judgments which the writ petitioner proposes to rely upon; (d) suitability and the eligibility of the writ petitioner for being granted the ACP; (e) any other ancillary or incidental issues connected with the same.
The benefit of the orders so passed today would be available to the writ petitioner, provided the writ petitioners, who are two in number, prefer their objections within the time stipulated by this Court.
Needless to point out that the writ petitioner has been decided without seeking any response from the respondents, thus passing of this order may not be construed to an expression that this Court has adjudicated the matter on merits. Any recovery made or re-fixation of salary shall be subject to the final orders passed by the authority in pursuance of the directions issued in the present case.
With the aforesaid observations the writ petition stands disposed off.
Order Date :- 3.10.2023
N.S.Rathour
