Vinod Kumar And Another vs State Of Up And 5 Others
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Allahabad High Court

Vinod Kumar And Another vs State Of Up And 5 Others on 28 May, 2024

Author: Mahesh Chandra Tripathi

Bench: Mahesh Chandra Tripathi

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:97429-DB
 
Court No. - 40
 

 
Case :- SPECIAL APPEAL No. - 390 of 2024
 

 
Appellant :- Vinod Kumar And Another
 
Respondent :- State Of Up And 5 Others
 
Counsel for Appellant :- Awadh Narain Rai
 
Counsel for Respondent :- Bhanu Pratap Singh Kachhawah,C.S.C.
 

 
Hon'ble Mahesh Chandra Tripathi,J.
 

Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Awadh Narain Rai, learned counsel for the appellants-petitioners, Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State-respondents and Sri Bhanu Pratap Singh, learned counsel for the respondent No.2 - District Basic Education Officer, Etah.

2. This intra-court appeal has been preferred questioning the validity of the order dated 12.03.2024 passed in Writ-A No.2364 of 2014 (Vinod Kumar and others vs. State of U.P. and for setting aside the order 29.11.2023 passed by the respondent No.2 - District Basic Education Officer, Etah.

3. The petitioners were appointed as Class IV employee along with other Class IV employees in a primary school, Etah run by Basic Education Department, Etah in year 1997. However, despite working continuously, they were not paid salary, therefore, they had preferred Writ Petition No.52288 of 2009, which was disposed of vide order dated 5.8.2013 to consider claim of petitioners. In pursuance of said order, District Basic Education Officer, Etah (in short 'BSA, Etah') had passed a detailed order rejecting the claim of the petitioners. Relevant part of the same is reproduced here-in-below:

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4. It appears that Writ-A No. 41436 of 2005 (Vedram vs. State of U.P. and others) was allowed by the learned Single Judge on 24.01.2024, permitting the petitioner to join service and receive salary from the date of rejoining. Meanwhile, Vijay Pal Singh and others filed Writ-A No.52284 of 2009, which was disposed of on 05.08.2013, directing the BSA, Etah, to decide the petitioners' representation within four weeks from the order's production date. Consequently, the BSA considered Virendra's claim and rejected it on 29.11.2013. This rejection was challenged in Writ-A No. 485 of 2014 (Virendra and 3 others vs. State of U.P. and 4 others). The learned Single Judge dismissed the writ petition on 23.05.2019 with the following detailed observations:

"Perusal of the record would go to show that process of recruitment was undertaken in the year 1995 by the office of District Basic Education Officer, Etah. No advertisement was issued inviting applicants to participate in the selection process. It appears that a requisition was sent to the District Employment Exchange and a list was sent by the said office on 23.5.1995. The selection proceedings apparently were to be undertaken on 24.8.1995, but the matter was deferred. The selection proceedings were undertaken on 5.10.1995 which are at page 41 of the writ petition. The proceedings clearly record that the names of 47 applicants were forwarded by the employment office and remaining applicants had applied directly in the office of District Basic Education Officer and their applications were entertained. It is thereafter that 179 persons appeared and a total number of 45 persons are said to have been selected, including the petitioners. The proceedings of selection dated 5.10.1995 cannot be said to be fair and transparent in any manner, inasmuch as it does not refer to issuance of any advertisement. It is also not clear as to how large number of applicants made applications directly to the District Basic Education Officer, particularly when no advertisement was issued. Selection was also not confined to applicants whose names were forwarded by the District Employment Exchange and other persons were directly allowed to participate in the selection process. The manner in which entire proceedings of selection have been undertaken would not inspire any confidence inasmuch as the selection proceedings are not shown to have been conducted in accordance with the mandate of Article 16 of the Constitution of India. Neither other eligible persons were made aware of the selection proceedings, nor a fair process was adopted giving opportunity to all eligible persons to participate. Such process of appointment, if has ultimately been cancelled would not call for any interference in exercise of writ jurisdiction. The findings in the order that neither advertisement was published nor documents relating to selection are available in the record are otherwise not shown to be factually incorrect. The termination order passed in 1997 has ultimately been reiterated vide order impugned dated 29.11.2013. Petitioners' working has otherwise been hardly for a period of two years and no equity arises in their favour, otherwise.

So far as the judgment of this Court in Writ Petition No.43499 of 1999, relied upon by learned counsel, is concerned, it appears that this Court had interfered in the matter after noticing the fact that no notice or opportunity was given to any of the persons. The aspect relating to non publication of advertisement in any newspaper as well as the fairness of recruitment process itself was neither examined nor was commented upon. Petitioners, therefore, cannot claim any parity with the petitioner in Writ Petition No.43499 of 1999. The appointment letter referred to in Writ Petition No.43499 of 1999 had been issued on 12.11.1996, whereas the present petitioners claim to have been appointed on 12.2.1997. Thus, it appears that the facts of the case in Writ Petition No.43499 of 1999 were otherwise distinct.

In view of the above, no interference in the matter is called for. Writ petition is, accordingly, dismissed."

(emphasis supplied)

5. Learned counsel for the petitioners-appellants vehemently submitted that the names of the petitioners were called from the employment exchange, and thus the learned Single Judge's observation that there was no publication, does not benefit the respondents. The petitioners were paid their salaries for one year, thereafter, the payments were arbitrarily stopped, prompting them to seek redress. He has placed reliance upon the Supreme Court judgment in Radhey Shyam Yadav vs. State of U.P. and others, AIR 2024 SC 260: 2024 Supreme (SC) 13 (para-34). He argued that the petitioners-appellants are not at fault and that the State cannot abruptly stop their salaries, as their names were legitimately called from the employment exchange and the selection process was strictly lawful. He has also placed reliance upon a judgment and order passed by learned Single Judge in Writ-A No.41436 of 2005 (Vedram vs. State of U.P. and others), where it was ordered on 24.01.2024 that the petitioner was allowed to rejoin service and thereafter, received salary from the date of rejoining, subject to other conditions and verification. However, no salary was awarded for the period the petitioner did not work, in line with the "no work no pay" principle. In this backdrop, the learned counsel submitted that the judgment in Vedram (supra), being more recent, should have been considered. He sumits that the learned Single Judge erred in negating the rights of the petitioners-appellants by relying on the judgment in Virendra (supra). Therefore, the impugned order should be set aside and the appeal allowed.

6. Per contra, Sri Fuzail Ahmad Ansari, learned Standing Counsel for the State-respondents, has vehemently opposed the writ petition. He relies on the judgment of Virendra (supra) passed by learned Single Judge, who scrutinized the process used by the authority in selection and appointment of the candidates in detail. This judgment, passed on 23.05.2019, was not considered by the learned Single Judge in the Vedram's case (supra), rendering the latter judgment null and void, and per incuriam. The judgment in the Virendra's case (supra) has attained finality and at no point of time, the same has been challenged by any party. Moreover, initially selection of 45 persons was made in the year 1997 and they were disengaged in the year 1997 itself and no other candidate has ever assailed the finding which has been returned by learned Single Judge while passing the order in Virendra (supra). Sri Ansari submits that once the department's process was thoroughly examined by the learned Single Judge, it cannot be overturned by a later judgment that fails to address the core issue of the recruitment process. Therefore, the judgment in Vedram (supra) cannot be relied upon, and the learned Single Judge rightly considered every facet of the matter. Additionally, the initiation process involved calling candidates from the employment exchange without any advertisement, thus the findings in the Virendra's judgment cannot be overturned at this belated stage without a challenge. Consequently, the objections raised by the petitioners-appellants, which suggest procedural lapses, cannot be examined at this belated stage.

7. Considering the facts and circumstances of the case, we do not find any ground to question the validity of the impugned judgment and order dated 12.03.2024 which may warrant any interference in this appeal. Accordingly, the special appeal stands rejected.

Order Date :- 28.5.2024

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