Allahabad High Court
Shantanand vs State Of Up And 4 Others on 6 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:81076-DB
Court No. - 40
Case :- SPECIAL APPEAL No. - 439 of 2024
Appellant :- Shantanand
Respondent :- State Of Up And 4 Others
Counsel for Appellant :- Dharmendra Kumar,Ram Surat Patel
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard learned counsel for the appellant-petitioner; learned counsel for the respondent no. 2 and Shri Devesh Vikram, learned Additional Chief Standing Counsel for the State-respondents.
2. Present Special Appeal under Chapter VIII Rule 5 of Allahabad High Court Rules 1952 is preferred against the impugned judgement and order dated 28.3.2024 in Writ A No. 26917 of 2018 (Shantanand vs. State of U.P. and 4 Others) by which the claim of appellant-petitioner with regard to salary under the compassionate appointment w.e.f. 05.11.2016 to 30.12.2017 has been denied and the order dated 28.3.2018 passed by Finance & Accounts Officer, Basic Education, Hamirpur has been approved.
4. Learned counsel for the appellant-petitioner states that the appellant's wife who was working as Assistant Teacher died in harness on 5.10.2015. Initially, she had been inducted as Shiksha Mitra. The amendment made by the State Government by its notification dated 30.05.2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 and The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) were under challenge before the Full Bench of this Court in Anand Kumar Yadav & Ors Vs . Union of India & Ors 2015(8) ADJ 338. The Full Bench vide its judgement and order dated 12.9.2015 had allowed the writ petitions in the following terms:
"(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and
(iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assistant Teachers shall stand quashed and set aside."
5. The aforesaid Full Bench judgment was subject matter of challenge before Hon'ble Apex Court in Civil Appeal No(s). 4347-4375/2014 (State of U.P. & Ors v. Shiv Kumar Pathak & Ors). Vide order dated 7.12.2015, Hon'ble Apex Court had stayed operation of the Full Bench judgment till the next date of listing.
6. Learned counsel for the appellant-petitioner states that admittedly the appellant-petitioner had performed work as Class IV employee under the compassionate appointment in view of the appointment letter dated 5.11.2016 (Paper Book, Pg. 55) issued by the District Basic Education Officer, Hamirpur. He submits that so far as the Full Bench judgment of this Court, the same has been approved by Hon'ble Apex Court vide judgment and order dated 25.7.2017. In this backdrop, the appellant-petitioner confined his relief before the learned Single Judge to the extent that his salary w.e.f. 5.11.2016 to 30.12.2017 may be released but the same has also been refused. He submits that his argument is also fortified on the ground that admittedly Shiksha Mitras who were absorbed as Assistant Teachers and later on after the decision of Hon'ble Apex Court, they were again reverted to Shiksha Mitras, no such recovery had been asked for and admittedly the Assistant Teachers who were imparting education in the institution, between the interregnum of the interim and final order of the Apex Court. Hence, he submits that his rightful claim of salary on the basis of work performed in the institution, could not be denied.
7. Considering the factual aspect of the matter which is not in dispute that the appellant-petitioner had worked as Class IV employee under the compassionate appointment in view of the appointment letter dated 5.11.2016 (Paper Book, Pg. 55) issued by the District Basic Education Officer, Hamirpur. At this stage, we do not find any illegality in the order impugned whereby appellant-petitioner's services were terminated but so far as the claim of appellant-petitioner for salary w.e.f. 05.11.2016 to 30.12.2017 is concerned, the same has to be considered by the competent authority as per law. Accordingly, we set aside the order dated 28.3.2018 passed by Finance & Accounts Officer, Basic Education, Hamirpur as well as the order dated 28.3.2024 passed by learned Single Judge. A mandamus is issued to the respondent authorities to release the salary of the appellant-petitioner w.e.f. 05.11.2016 to 30.12.2017 as class IV expeditiously and preferably within six weeks from the date of production of a certified copy of this order. We further clarify that the order has been passed under peculiar facts and circumstances of the present case and it may not be treated as a precedent.
8. With the aforesaid observations and direction, the Special Appeal stands disposed of.
Order Date :- 6.5.2024
A.K.Srivastava
