Allahabad High Court
Arvind Kumar Trivedi vs Joint Director Of Secondary Edu. ... on 4 January, 2024
Author: Manish Mathur
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:4460
Court No. - 17
Case :- WRIT - A No. - 24341 of 2019
Petitioner :- Arvind Kumar Trivedi
Respondent :- Joint Director Of Secondary Edu. Lucknow And Ors.
Counsel for Petitioner :- Sharad Kumar Srivastava,Shailesh Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Manish Mathur,J.
1. Heard Mr. Sharad Kumar Srivastava learned counsel for petitioner and learned State Counsel for opposite parties.
2. Petition has been filed challenging order dated 20th July, 2019 whereby petitioner's representation for treating him as regularized Assistant Teacher with effect from 7th August, 1993 with all consequential benefits has been rejected.
3. It is submitted that earlier on 14th March, 1986 the post of Lecturer in the subject of Geography fell vacant due to death of earlier incumbent in the institution in question which is the Rashtrapita Municipal Inter College which is a recognized and aided institution. It is submitted that in pursuance of advertisement made for appointment of ad hoc teacher in the vacancy, petitioner applied and thereafter appeared in the advertisement but the post was re-advertised on 29th August, 1988 whereunder also petitioner applied and participated in the interview but results thereof were never published and the Principal of institution appointed one Mr. Syed Arshad Ali as ad hoc teacher for the said post, which was approved by the District Inspector of Schools vide order dated 23rd September, 1988.
4. Being aggrieved with the aforesaid appointment, petitioner along with one Arun Kuamr Mishra filed writ petition No. 2582 (S/S) of 1989 which was decided finally vide judgment and order dated 5th October, 2006 whereby the appointment of Mr. Syed Arshad Ali was held to be illegal and was quashed. This Court also directed the manager of the committee of management to issue appointment order in favour of petitioner and for the District Inspector of School to accord approval for the purposes of payment of salary etc. It is submitted that it was specifically held that petitioner would be entitled for benefits of all purposes of service from the date of appointment on which the said Syed Arshad Ali was appointed in the post in question. However stipulation was made that wages/salary for the said appointment would not be provided to petitioner on the principle of no work no pay.
5. The aforesaid judgment and order was thereafter challenged by Syed Arshad Ali in special appeal No. 750 of 2006, which was disposed of vide judgment and order dated 23rd September, 2008 and in which while upholding the judgment of learned Single Judge, a cost of Rs. 30,000/- as compensation to be paid to petitioner was also imposed in lieu of his suffering.
6. It is submitted that in pursuance thereof, the opposite parties appointed petitioner in place of Syed Arshad Ali vide order dated 16th October, 2006 with joining on 21st October, 2008 after judgment rendered in special appeal and vide another order dated 4th October, 2010, the manager of the institution directed benefits of seniority, fixation of pay scale etc. to be granted to petitioner with effect from 15th November, 1988 which was the date on which Syed Arshad Ali had joined on the post of Lecturer in the institution.
7. Since fixation of pay scale was not being adhered to in favour of petitioner with effect from 1988, petitioner filed contempt petition No. 1874 of 2007 which was dismissed vide order dated 12th March, 2012 on the ground of substantial compliance. Special appeal No. 186 of 2012 thereagainst was also dismissed.
8. Due to the fact that service benefits were not made available to petitioner in terms of judgment rendered in writ petition No. 2582 (S/S) of 1989, the petitioner filed another writ petition No. 10987 of 2017 in which he claimed fixation of salary with effect from 1988. The said petition was allowed by means of judgment and order dated 19th May, 2017. It is submitted that aforesaid judgment clearly directed opposite parties to comply with directions issued in earlier writ petition. Special appeal(defective) No. 478 of 2017 thereagainst filed by State was dismissed vide order dated 6th November, 2017 whereafter a review application was filed in writ petition No. 10987 of 2017 which was also dismissed vide judgment and order dated Ist February, 2018.
9. Learned counsel has further adverted to the order dated 10th April, 1995 (annexure No.19) whereby aforesaid Mr. Syed Arshad Ali was in the mean time regularized in service on the post of Lecturer in the subject of Geography with effect from 7th August, 1993.
10. Since petitioner's grievances were not being adverted to, he filed another writ petition No. 23504 (S/S) of 2018 which was disposed of vide order dated 18th August, 2018 directing petitioner to file a comprehensive representation under section 18(2) of the U.P. Secondary Education Services Selection Board Act 1982 and the District Inspector of Schools was directed to pass appropriate orders thereupon whereafter order dated 4th October, 2018 was passed again rejecting petitioner's representation regarding regularization in service and seniority and upholding the claim of one Mr. Govind Kumar Bajpayee to be the officiating Principal of the institution. The said petition was disposed of vide judgment and order dated 20th November, 2018 directing petitioner to approach Chairman, Regional Level Committee with regard to regualrizxation in service and the said authority was directed to pass ordrs in accordance thereof. It is submitted that it is in pursuance of such directions that impugned order has been passed again rejecting petitioner's representation only on the ground that since he had not worked on the post from 15th November, 1988 till 20th October, 2008, his case can not be considered for regularization in terms of Section 33 of the Act of 1982.
11. It has been submitted that once this Court in the final judgment and order rendered in writ petition No. 2582 (S/S) of 1989 has already directed that petitioner shall be entitled for the benefit of all purposes of service from the date when Mr. Syed Arshad Ali was appointed, then it would be deemed that petitioner was in service with effect from 15th November, 1988 due to which his case would be squarely covered by Section 33 of the Act of 1982 and therefore representation has been incorrectly rejected.
12. Learned counsel for opposite parties have refuted submissions advanced by learned counsel for petitioner primarily with submission that Section 33 of the Act of 1982 is the only provision under which petitioner's regularization can be considered and since petitioner has not actually worked in the college from 15th November, 1988 till 20th October, 2008 nor was paid salary of the said post, he is therefore ineligible for regularization as also in view of the fact that he has attained the age of superannuation on 31st March, 2023.
13. Upon consideration of submissions advanced by learned counsel for parties and perusal of material on record and particularly the narration of facts indicated herein above, it is admitted that despite participation in the recruitment process for the post of Lecturer in the subject of Geography in the institution in question, petitioner's candidature was disregarded in favour of Mr. Syed Arsad Ali which was challenged in writ petition No. 2582 (S/S) of 1989 which was allowed by means of judgment and order dated 5th October, 2006. The operative portion of judgment is as follows:-
" Under the circumstances I hereby quash the appointment of the opposite party no.5 on the post of Lecturer in Geogruphy and a writ of mandamus is issued to the respondent no.3 i.e. the Manager of the Committee of Management of the College concerned to Issue appointment order in favour of the petitioner No.1 and further a direction is issued to the opposite party no.2 1.e, the District Inspector of Schools, Hardoi to accord approval of the petitioner No.1 for the purposes of payment of salary etc. This all exercise shall be completed within fifteen days from the date of production of a certified copy of this order before the concerned authorities. It is further provided that the petitioner No.1 shall be entitled for the benefit of all purposes of service from the date of appointment, on which the respondent no.5 was appointed on the post in question, except the wages/salary on the principle of no work no pay."
14. The aforesaid judgment has thereafter been upheld in special appeal No. 750 of 2006 in which Division Bench of this Court in fact awarded a sum of Rs. 30,000/- as compensation to petitioner in lieu of his suffering. It is admitted that no special leave petition before the Supreme Court was filed thereagaisnt, which therefore attained finality.
15. Although petitioner was subsequently granted appointment vide order dated 16th October, 2006 but he was actually permitted to join the institution on 20th October, 2008 i.e. after dismissal of the special appeal. However the order dated 16th October,2006 also reveals grant of all service benefits to petitioner with effect from 15th November, 1988 as was directed by this Court.
16. In the considered opinion of this Court, once writ petition No. 2582 (S/S) of 1989 was allowed by this Court specifically directing that petitioner would be entitled for all service benefits with effect from the date of appointment of Mr. Syed Arshad Ali, it would be deemed that petitioner was in service with effect from 15th November, 1988. The contrary observation in the impugned order is clearly in violation of such directions issued by this Court which even otherwise has been upheld in special appeal.
17. It is also on record that in the meantime Mr. Syed Arshad Ali was regularized in service by means of order dated 10th April, 1995 primarily on the basis of length of service rendered by him.
18. It is also on record that while allowing writ petition No. 10987 (S/S) of 2017, this Court has again held petitioner entitled for benefit of services from the date of appointment of Mr. Syed Arshad Ali i.e. 15th November, 1988 and has also held that it would mean that service of petitioner was to be counted with effect from 15th November, 1988 for all other purposes. Relevant portion of the judgment is as follows:-
" A conjoint reading of the aforesaid judgments makes it amply clear that the appointment of Syed Arshad Ali was held to be illegal and the petitioner was ordered to be appointed with the observation that he shall be entitled for the benefit of services from the date of appointment of Syed Arshad, i.e. 15.11.1988, for all purposes except the wages/salary on the principle of No Work No Pay, meaning thereby the service of the petitioner were to be counted w.e.f 15.11.1988 for all other purposes including fixation of his pay consequent to his appointment etc."
19. The said petition was thereafter allowed vide judgment and order dated 19th May, 2017 holding that District Inspector of Schools while fixing pay of petitioner has erroneously not taken into consideration the period with effect from 15th November, 1988 till his actual joining on 21st October,2008 particularly when the judgment of writ court had attained finality between the parties. The said judgment has also been upheld in special appeal which has also thereafter attained finality and even a review petition was dismissed.
20. In view of repeated observations by this Court and being upheld in special appeal, it is evident that petitioner was required to be treated in service with effect from 15th November, 1988 till the date of his actual joining on 21st October, 2008. The impugned order dated 20th July, 2019 having been passed against specific directions of this Court is therefore clearly vitiated on that account and is hereby quashed by issuance of writ in the nature of Certiorari. A further writ in the nature of Mandamus is issued commanding the opposite parties to treat petitioner in service for the period 15th November, 1988 till 21st October, 2008.
21. It is also evident from the order dated 10th April, 1995 (annexure No.19) that in the meantime pending litigations, Mr. Syed Arshad Ali was regularized in service with effect form 7th August, 1993 in terms of Section 33 of the Act of 1982. Since it is not the case of opposite parties that petitioner was otherwise ineligible for regularization in terms of said section, taking length of service of petitioner with effect from 15th November, 1988, it is evident that he would be qualified for regularization with effect from 7th August, 1993 as was in the case of Mr. Syed Arshad Ali. A writ in the nature of Mandamus is therefore also issued to the competent authority to pass appropriate orders regularizing petitioner in service with effect from 7th August, 1993.
Resultantly the petition succeeds and is allowed with cost of Rs. 50,000/- to the petitioner.
Order Date :- 4.1.2024
prabhat
