Allahabad High Court

Ajay Pal Singh vs State Of U.P. Thru Its ... on 30 May, 2024





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


1
 
AFR
 
Neutral Citation No. - 2024:AHC-LKO:40465
 
RESERVED ON 25-04-2024
 
DELIVERED ON 30-05-2024
 
Court No. - 20
 
Case :- WRIT - A No. - 5280 of 2015
 
Petitioner :- Ajay Pal Singh
 
Respondent :- State Of U.P. Thru Its
 
Prin.Secy.Deptt.Of Secondary Edu.Andors
 
Counsel for Petitioner :- Pushp Raj Singh,Gaurav
 
Upadhyay,Manish Misra
 
Counsel for Respondent :- C.S.C.
 
Hon'ble Shree Prakash Singh,J.

1. Heard learned counsel for the petitioner, Sri

Shailendra Kumar Singh, learned Chief Standing

Counsel and Sri Vivek Shukla, learned Additional Chief

Standing Counsel for the State and perused the

material placed on records.

2. By means of instant writ petition, the petitioner has

assailed the order dated 02-06-2015 passed by the

Deputy Director of Education,Lucknow Region, Lucknow

and the order dated 13-08-2015 passed by the

opposite party no. 1.

3. Contention of learned counsel for the petitioner is

that the petitioner was initially appointed on the post of

Assistant Teacher C.T. Grade on 01-08-1972, and

subsequently, he was treated as Assistant Teacher in

L.T. Grade in Narvadeshwar Inter College, Rambagh,

Raebareli(hereinafter referred to as 'Institution'). The

institution is recognized by the U.P. Intermediate

Education Board and imparts education upto

Intermediate Classes and the provisions of

Intermediate Education Act, 1921 (hereinafter referred

to as 'Act, 1921'), U.P. Secondary Education Service

Selection Board Act, 1982(U.P. Act No. 5 of 1982) as

well as the U.P. High School and Intermediate

College(Payment of Salaries to Teachers and other

Employees) Act, 1971, are applicable on the teaching

and non teaching staffs of the institution. Further

submitted that the work and conduct of the petitioner

was always above the board, but, unfortunately, in the

year, 1977, he was falsely implicated in a murder case,

wherein the petitioner was sentenced for life

imprisonment vide Judgment and order dated 12-05-

1981, whereafter, an appeal was preferred by the

petitioner and he was released on bail. Thereafter, the

petitioner joined the institution and kept on working

and was getting salary, regularly. He next submits that

the petitioner was sent to jail at the time, when the

first information report was lodged and later on, when

he was punished and he communicated it to the

institution,but, no departmental enquiry was

contemplated against him, however, he was being paid

salary, except apart the period he remained in jail.

4. Again submitted that the appeal preferred by the

petitioner was decided and the punishment was

reduced and he was punished under section 304(ii) of

I.P.C. and was sentenced for 7 years of imprisonment

and sent to jail, whereafter, the petitioner preferred

Special Leave Petition before the Hon'ble Apex Court,

which was also dismissed and subsequently, the review

petition and curative petition were also dismissed. He

further submits that after serving the punishment, the

petitioner was released from jail on 03-01-2010,

though in between, he had attained the age of

superannuation on 30-06-2009, but, the fact remains

that since 01-10-2004 uptil the date of his retirement,

the petitioner was not paid his salary and therefore,

after release from the jail, the petitioner moved an

application for release of his post retiral benefits, which

were due to be paid to him, but, once, after completing

the pension papers, sent to the office of Deputy

Director of Education, Lucknow Region, Lucknow, the

Deputy Director of Education sought the instructions

from the Finance Controller of the office of the Director

Secondary Education, vide letters dated 05-05-2010

and 23-02-2011, but, the same remains unresponded

and therefore, the petitioner preferred Writ Petition

bearing no. 1507(S/S) of 2013, wherein an order was

passed on 15-03-2013.

5. The relevant portion of the order is quoted

hereinunder :-

"Heard learned counsel for the petitioner and learned counsel for

the opposite parties.

Learned counsel for the petitioner submits retiral dues of the

petitioner has not been paid, though the petitioner retired on

30.6.2009. He further states that necessary papers have already

been forwarded to the authority concerned, but the post retiral

dues of the petitioner has not been paid up till now. The

petitioner has also made a representation in this regard.

In the aforesaid circumstances, the writ petition is disposed of

with the direction that the authority concerned shall consider

and dispose of the aforesaid representation of the petitioner

dated 22.1.2013, as contained in Annexure no.5 to the writ

petition, in accordance with law within a period of three months

from the date of receipt of a certified copy of this order."

6. He added that in compliance of the order dated 15-

03-2013, the order dated 02-06-2015 was passed,

whereby the claim of the petitioner for payment of

pension has been rejected and thereafter, the petitioner

filed a representation/appeal before the opposite party

no. 1, who without application of mind, passed the

order on 13-08-2015 and upheld the order passed by

the Deputy Director of Education.

7. Learned counsel for the petitioner argued that the

petitioner has falsely been implicated in the criminal

case and he was not involved in committing any

offence. He next submits that as and when the

petitioner was sent to jail, he informed the department,

but, no departmental enquiry has ever been

contemplated against him and in criminal appeal, the

punishment is reduced upto 7 years and after serving

the period of 7 years of imprisonment, the petitioner

was released from jail and he has been paid all the post

retiral dues. Therefore, submission is that the petitioner

is also entitled for the pensionary benefits.

8. Further contention is that since there is no criminal

case pending against the petitioner and therefore,under

Regulation 351 of the Civil Services Regulations, the

petitioner is entitled for payment of the pensionary

benefits. Next submits that the Deputy Director of

Education and the State Government have passed the

orders in an arbitrary manner and without adhering to

the provisions of Civil Services Regulations as neither

any departmental enquiry nor any criminal case is

pending against the petitioner. Thus, submission is that

the orders dated 02-06-2015 and 13-08-2015 may be

quashed.

9. On the other hand, learned counsel appearing for the

State has vehemently opposed the contentions

aforesaid and submitted that initially, when the first

information report was lodged, the petitioner was sent

to jail and thereafter, when he was convicted, he was

again sent to jail and finally, the conviction is upheld by

the Apex Court. He submits that so far as the

provisions of Regulation 351 of the Civil Services

Regulations are concerned, that speaks about the

implied condition of future good conduct for ever grant

of pension and since the petitioner is convicted and

therefore, as per the abovesaid provisions, he is not

entitled for pension.

10. Adding his arguments,he submits that in

compliance of the order dated 15-03-2013 passed by

this court, the claim of the petitioner with respect to

payment of pension has thoroughly been considered

and decided by the Deputy Director of Education and

once the representation is preferred against the same,

the State Government has also passed an order on 13-

08-2015 and has rightly turned down the claim of the

petitioner. Thus, submission is that the petitioner is not

entitled for any relief.

11. Having heard learned counsels for the parties and

after perusal of the material placed on record, it

transpires that the petitioner was initially appointed on

the post of Assistant Teacher,whereafter, the first

information report was lodged against him, for

committing murder and he was punished. Thereafter,

the petitioner filed an appeal before this court, which

was also dismissed on 06-07-2004 and the Special

Leave Petition was preferred before the Hon'ble Apex

Court and that too, was dismissed on 27-09-2004 and

the petitioner after serving the 7 years of sentence,

was released from jail and admittedly, he is a convicted

person.

12. After the petitioner was released from jail, serving

the sentence, raised claim for payment of pension and

thereafter, filed a writ petition, wherein a direction is

given for taking a decision on the representation of the

petitioner and ultimately, the decision was taken by the

Deputy Director of Education on 02-06-2015, rejecting

the claim of the petitioner.

13. When this court examines the matter in facts and

law, it emerges that so far as the claim of the petitioner

is concerned, the same is covered with the provisions

of Regulation 351 of the Civil Service Regulations,

which provides implied condition for grant of pension.

14. Provision of Regulation 351 of the Civil Services

Regulations is extracted as follows :-

"351. Future good conduct is an implied condition of ever grant

of a pension. The State Government reserve to themselves the

right of withholding or withdrawing a pension or any part of it, if

the pensioner be convicted of serious crime or be guilty of grave

misconduct.

The decision of the State Government on any question of

withholding or withdrawing the whole or any part of pension

under this regulation shall be final and conclusive."

15. A bare reading of the abovesaid provision is evident

that the same confers power upon the State

Government for withholding or withdrawing pension or

any part of it, if a person claiming pension is convicted

of 'serious crime' or guilty of 'grave misconduct',

meaning thereby, that if a criminal case or disciplinary

proceeding is pending, it would not be sufficient to

withhold or withdraw the pension, unless such person is

convicted or hold the guilty of grave misconduct. Infact,

the expression 'serious crime' indicates towards the

offences, which are having the dangerous possible

consequences. The 'serious offences' have been defined

under section 2(54) of the Juvenile Justice Act, 2015,

which is extracted as follows :-

"Serious offences" includes the offences for which the

punishment under the Indian Penal Code or any other law for

the time being in force, is imprisonment between three to seven

years."

16. The aforesaid provision is very clear in it's term as

the same provides that the State Government reserves

the 'right of withholding or withdrawing a pension or

any part of it, if the pensioner be convicted of serious

crime or be guilty of grave misconduct.

17. This court is also aware of the law laid down in the

case of Shiv Gopal and Others Vs. State of U.P. and

Others and other connected matters (Special

Appeal No. 40 of 2017 decided on 08-05-2019.

Paragraph nos. 31,32 & 36 of the said Judgment are

quoted hereinunder:-

"31. The decision of the above Division Bench as contained in

the later part is based upon equitable principle and is not the law

that has been laid down. The decision on equity is confined to

the fact situation of that case. Moreover, equity has no place

where the provisions of law are express.

32. The decision in the case of Bal Krishna Tiwari39 has been

rendered simply following the equitable principle of Faini Singh

(Supra) in context with the fact situation of the said case

wherein the government servant had retired 10 yeas ago but

was not getting his gratuity as a case was pending against him.

The said decision also does not lay down any binding precedent.

36. The decision dated 5.10.2013 in Writ No. 12574 of 2013

(Narendra Singh Vs. State of U.P., and others) is also of no

consequence as it again fails to take into consideration the

specific provision of Regulation 919-A with regard to withholding

of gratuity during the pendency of the judicial

proceedings."

18. Undisputedly, the petitioner is a convicted person

and therefore the Deputy Director of Education as well

as the State Government have rightly passed the

orders on 02-06-2015 and 13-08-2015, respectively,

while rejecting the claim/prayer of the petitioner for