Allahabad High Court
State Of U.P. Thru. Secy. Secondary ... vs Shiv Kumar Shukla And Others on 30 May, 2024
Author: Rajan Roy
Bench: Rajan Roy
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2024:AHC-LKO:41280-DB
Court No. - 2
Case :- SPECIAL APPEAL No. - 106 of 2024
Appellant :- State Of U.P. Thru. Secy. Secondary Education U.P. Lko. And Others
Respondent :- Shiv Kumar Shukla And Others
Counsel for Appellant :- C.S.C.
Counsel for Respondent :- Om Prakash Mani Tripathi
Hon'ble Rajan Roy,J.
Hon'ble Om Prakash Shukla,J.
1. Heard Shri Anand Kumar Singh, learned Additional Chief Standing Counsel for the appellants/State and Shri Om Prakash Mani Tripathi, learned counsel for the respondents.
2. This is an appeal by the State under Chapter VIII Rule 5 of the Allahabad High Court Rules, 1952 challenging a judgment and order of the learned Single Judge dated 11.01.2024 passed in Writ - A No. 1411 of 2023; Shiv Kumar Shukla Vs. State of U.p. and Ors.
3. The writ petition has been filed challenging an order dated 18.11.2022 whereby the claim for regularization of respondent's services on the post of L.T. Grade Teacher was rejected. Learned Single Judge has allowed the claim of the respondent by the impugned order.
4. On 07.05.2024 after hearing the parties and perusing the provisions of Section 33(G)(6) of the U.P. Secondary Education Services Selection Board (Amendment) Act, 1982 we had passed the following order:-
"[C.M. Application No.1 of 2024 : Application for Condonation of Delay]
1. Heard.
2. Cause shown in the affidavit filed in support of the application for condonation of delay is sufficient.
3. Accordingly, the instant application for condonation of delay is allowed and the delay in filing the appeal is hereby condoned.
4. Office is directed to allot regular number.
[order on appeal]
5. Let the appellant's counsel demonstrate that Shri Hans Nath Singh, who had gone on leave and due to the said reason the respondent was engaged allegedly on short term vacancy, in fact, returned from leave and joined and if it was so then the burden would be heavy upon the respondent's counsel to justify the order of the writ Court which, in fact, does not dwell into this aspect and if he ultimately joined back then prima facie the short term vacancy would have come to en end, therefore, there was no question of its conversion into substantive vacancy.
6. List in the week commencing 20.05.2024 as fresh."
5. Today, Shri Anand Kumar Singh, learned counsel for the Appellant/State has informed on the basis of written instructions that Shri Hans Nath Singh retired while on leave, meaning thereby, on the date of his retirement a substantive vacancy occurred on the said post on which the respondent herein had earlier been appointed on short term basis when Shri Hans Nath Singh had gone on leave, therefore, on being confronted with the legal position learned counsel for the State could not deny the fact that it was converted into a substantive vacancy. It being so, the claim of the respondent for being considered for regularization under Section 33(G)(6) of the Act, 1982 is made out and that is precisely what has been ordered by the writ Court, however, he says that this provision came into force only on 22.03.2016, therefore, the services of the respondent can not be regularized from any date prior to 22.03.2016.
6. On being confronted with this scenario Shri Om Prakash Mani Tripathi, learned counsel for the respondent fairly submitted that it is true that the services can not be regularized from a date prior to 22.03.2016.
7. At this stage, learned counsel for the State states that the writ Court has ordered for payment of pension and other post retiral dues consequent to regularization of his services as also to consider grant of Selection and Promotional Pay Grades to the respondent herein within eight weeks.
8. The respondent has retired in 2021. The right to be considered for regularization of his services had accrued in favour of the respondent prior to his retirement a fact which is not being denied. If the appellant/State kept sleeping over the matter, then, such claim can not be denied merely because in the interregnum the Teacher has retired. The State can not take advantage of its own inaction in not considering the respondent for regularization.
9. As regards pension and post retiral dues, the same would obviously be considered in the light of the relevant Rules which as informed by Shri Om Prakash Mani Tripathi, learned counsel for the respondent are known as Uttar Pradesh Contributory Provident Fund Insurance Pension Rules and according to him, these apply even to services rendered continuously on temporary or officiating basis also as is mentioned in Rule 19 thereof, meaning thereby, he says that past services rendered by the respondent even prior to his regularization would have to be taken into consideration after his regularization. We do not enter into this issue except that whatever is the Rule position and the law on the subject will be followed so far as payment of post retiral dues to the respondent is concerned. With this clarification/modification in the judgment of the writ Court the Special Appeal is disposed of.
10. Whatever decision is required to be taken in this regard whether it be for post retiral dues or for selection grade promotional/financial upgradation it shall be taken within a period of two months.
11. If the respondent is able to demonstrate before the appellants that the services of similarly places persons have been regularized from a prior date i.e. a date prior to 22.03.2016 it shall be open for him to demonstrate it before the appellant which will have to be taken into consideration while passing requisite orders in terms of the impugned judgment.
12. With the aforesaid observations/directions, the Special Appeal is finally disposed of.
.
(Om Prakash Shukla,J.) (Rajan Roy,J.)
Order Date :- 30.5.2024
R.K.P.
