Bighesingh vs State Of U.P. And 5 Others
2023 Latest Caselaw 26925 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:190216
 
Court No. - 35
 

 
Case :- WRIT - A No. - 14259 of 2023
 

 
Petitioner :- Bighesingh
 
Respondent :- State Of U.P. And 5 Others
 
Counsel for Petitioner :- Durgesh Pratap Singh,Gautam Baghel
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Gautam Baghel, learned counsel for the writ petitioner and Sri Gaya Prasad Singh, learned Standing Counsel who appears for respondents No. 1 to 5.

2. In view of the order which is being proposed to be passed today, notice is not being issued to the sixth respondent.

3. The case of the writ petitioner is that the sixth respondent, Jodha Singh Inter College Harkhupur, Etawah is an institution recognized under the provisions of U.P. Intermediate Education Act, 1921 and the U.P. Act No. 24 of 1971 stand applicable.

4. It is the case of the writ petitioner that was initially appointed as Assistant Teacher in the attached primary section on 08.07.1977 and thereafter he was granted promotion on the post of Assistant Teacher L.T. Grade and he further claims to have been made to officiate as Principal with effect from 18.09.2014 on account of a permanent vacancy on the post of Principal owing to retirement. As per the writ petitioner, he was not being accorded promotion on the post Lecturer (Sanskrit) and his candidature was being rejected on the ground that he has not completed 5 years of service on the date of the occurrence of the vacancy so the writ petitioner preferred Writ A No. 512 of 2016 which came to be allowed on 08.01.2016 remitting the matter back to the second respondent in the said writ petitioner pursuant whereto an order is stated to have been passed on 09.06.2016 according promotion to the writ petitioner on the post of Lecturer (Sanskrit) and approval whereof was granted on 27.06.2016. As the writ petitioner was being allowed to function as an Officiating Principal but was not granted benefit for the said assignment so the writ petitioner preferred Writ A No. 24643 of 2018 (Bighe Singh Vs. State of U.P.) which came to be disposed of on 20.11.2018 and thereafter on 26.12.2018 the writ petitioner was made entitled to the benefits for the payment of salary and other entitlement as an Officiating Principal by virtue of the order dated 26.12.2018. A consequential order was also passed on 07.01.2019 by the District Inspector of Schools, Etawah.

5. In para 12 of the writ petitioner it has been further stated that the writ petitioner superannuated on 31.03.2019. However, according to the writ petitioner now a communication dated 10.03.2023 has been issued from the office of the Director of Education, Prayagraj, second respondent addressed to the Joint Director of Education Kanpur Region Kanpur whereby it has been held that the assignment granted to the writ petitioner as an Officiating Principal was illegal against the rules and further the recovery has also been sought to be made.

6. Questioning the communication dated 10.03.2023 as well as for a relief for grant of arrears to the petitioner for the post of Principal from July, 2014 to January, 2019 the writ petitioner has preferred the present writ petition.

7. This Court entertained the writ petition on 28.08.2023 while passing the following order.-

"The contention of Sri Gautam Baghel, learned counsel for the writ petitioner is that the order dated 10.03.2023 passed by the Joint Director of Education (Arth) Directorate of Secondary Education, Prayagraj, third respondent proceeds on misconception of facts and law particularly when the writ petitioner had functioned as an Officiating Principal and approval whereof was also accorded on 26.12.2018, however, in the wake of the judgment in the case of Sadhna & Raisul Hasan (supra) now recovery is being sought to be made and the writ petitioner stands superannuated in the year 2019. Learned counsel for the writ petitioner submits that once approval has been granted and the writ petitioner had been functioning as an Officiating Principal then there is no occasion to recover the said amount.

Sri Santosh Kumar, learned Standing Counsel who appears for respondents No. 1 to 5 seeks time to obtain instructions.

Put up this case on 05.09.2023 as fresh by that time the learned Standing Counsel shall obtain instructions."

8. Today Sri Gaya Prasad Singh, learned Standing Counsel has produced before this Court the instructions dated 02.09.2023 under the signature of District Inspector of Schools, Etawah, fifth respondent.

9. Sri Baghel, learned counsel who appears for the writ petitioner has sought to argue that the orders impugned in the writ petitioner cannot be sustained for a single moment particularly in view of the fact that the same are in violation of principles of natural justice as the writ petitioner was not put to notice and in this regard he seeks to rely upon the averments made in para 17 of the writ petition. He further submits that, in case, the writ petitioner was put to notice it could have amply demonstrated that there is no occasion for passing the said order. Further submission is that the said order has been passed after four years post retirement of the writ petitioner and further is not a case wherein the writ petitioner was enjoying the benefits of officiating principle on his own sweet will by practising fraud as the respondent themselves approved the same in that regard. He submits that the order be set aside and the matter be remitted back to the authorities to pass a fresh order.

10. Sri Gaya Prasad Singh, learned Standing Counsel who appears for respondents No. 1 to 5, on the other hand, while countering the submission of the learned counsel for the writ petitioner submits that the writ petitioner was not eligible for being accorded the benefit of Officiating Principal. However, a pointed query was made as to whether the writ petitioner was put to notice before issuing the said communication Sri Gaya Prasad Singh, learned Standing Counsel submits that the order does not spell the same and further as per the instruction they have silent upon the said aspect. However, he submits that the present order be treated to a show cause notice writ petitioner may prefer a comprehensive representation before the second respondent who shall address the claim of the writ petitioner which have been sought to be pleaded and argued in the present writ petition and he does not propose to file any response to the writ petition.

11. To such a submission, learned counsel for the writ petitioner has no objection and he gracefully accepts the same.

12. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed of without seeking any response from the respondent granting liberty to the writ petitioner to prefer a comprehensive representation before the fifth respondent, District Inspector of Schools, Etawah along with the self attested copy of the writ petition who shall on the receipt of the same put to notice the sixth respondent and thereafter proceed to decide the entitlement of the writ petitioner strictly in accordance with law within a period of two months from the date of production of certified copy of the order bearing in mind the following fundamental and core issues:

(a) the issue with regard to the entitlement of the writ petitioner with respect to the arrears of salary for the post of Principal from July, 2014 to January, 2019;

(b) the issue with respect to the approvals granted by the Educational Authorities for officiation of the writ petitioner as Principal till the date of retirement of the writ petitioner;

(c) the issue with respect to recovery of the said amount and to withhold the arrears on the face of the fact that there is no allegation of fraud, concealment or misrepresentation;

(d) any other ancillary and incidental issue in that regard.

14. It is further clarified that since this Court has treated the communication dated 10.03.2023 issued by the fifth respondent, District Inspector of Schools, Etawah a show cause notice, thus, post submission of the reply a reasoned and speaking order shall be passed and the said communication dated 10.03.2023 shall be subject to the final orders to be passed pursuant to the exercise to be undertaken in the light of the order of this Court.

15. Instructions filed today are taken on record and marked as appendix 'A'.

Order Date :- 4.10.2023

Rajesh