Shambhu Dayal Shah vs State Of Uttarakhand & Others
2021 Latest Caselaw 3835 UK

           IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
                   Writ Petition (M/S) No. 754 of 2021

Shambhu Dayal Shah                                              .......Petitioner
                                          Vs.

State of Uttarakhand & others                                 .....Respondents

Mr. Harendra Belwal, Advocate for the petitioner. Mr. Rakesh Kunwar, Additional Chief Standing Counsel, for the State of Uttarakhand.

Hon'ble Sharad Kumar Sharma, J (Oral) The brief facts of the case are that the petitioner has come up in the writ petition contending thereof that in view of the provisions laid down by the Government Orders, once he was a State awardee of "Shailesh Matiyani State Education Award - 2018". In that eventuality, he ought to be granted an extension in service for a period of two years since being the State Awardee, as it has been contemplated in the said Government Order. But, on raising of his claim for the extension of the service period for two years, the same has been rejected by the impugned orders dated 21.01.2021, passed by the respondent No.2, herein, which was later on also affirmed by the decision of 22.01.2021, which was passed by the respondent No.3, as a consequence thereto, the extension in services for years, was denied.

2. Let us deal with the controversy from the different perspective altogether, then what has been argued, and pleaded in the present writ petition. The issue which this Court would like to address upon is "where a person attached with the academics i.e. the Teacher in an Institution, if he attains the age of superannuation, and is reappointed to serve, till the end of the academic session, whether this period of extended services after the reappointment, after attaining the age of superannuation, could be treated as to be a continuance of the previous service extend the benefit of two years services, as provided under the Government Orders or would be treated to be reappointment".

3. The facts which are involved in the present case are, that the petitioner has come up with a case, that he was initially appointed with the respondent Department as an Assistant Teacher (CT Grade), on 02.12.1991, but on account of his own self-assessment of having rendered a satisfactory service, and contending himself to be one of the strong candidate and an aspirant for being awarded with the "Shailesh Matiyani State Education Award - 2018", which has been contemplated to be granted in terms of the Government Order No.329/XXIV-2/10-9(11)/2008 dated 08.04.2011, issued by the Secretary, Government of Uttarakhand, Dehradun, to the Director, School Education, Government of Uttarakhand, Dehradun.

4. The sessions benefit was supposed to be extended, in relation to those persons or employees only who retired in the mid session and in pursuance to the said Government Order, the arrangement of extension of service, has to be made applicable from the date, the State Government makes a necessary amendment under the Rules, provided under the Financial Handbook. Accordingly, the academic session benefit, was granted to the petitioner for the academic year 2020-2021, after he has attained the age of superannuation on 30.11.2020. The "reappointment" made after attaining the age of superannuation, thereby extending the services till the end of the academic session, has altogether a different legislative intent and purpose. The intention and purposes of extension of services till end of academic session, is that the academics of a student may not suffer on account of a Teacher attaining the age of superannuation, during the ensuing academic session. In fact the extension of services contemplated, therein, is only for the purposes of meeting out the "academic objectives" and not "the personal objective", of a Teacher, because any extension given, thereof, is by way of a reappointment, and not by way of a continuance of the services, after the attainment of the age of superannuation. Hence, the basic purpose of the Office Order No.01/898, dated 23.11.2020, where the academic session benefit was given to the petitioner was only for the purposes by way of grant of reappointment to the petitioner, and not a continuation of the period services, which he has already rendered. In order to ensure that the academics of the student is not

affected, due to change or non availability of the teacher, engaged in teaching a particular subject.

5. Learned counsel for the petitioner submits, that the name of the petitioner was considered by the respondent State for the grant of "Shailesh Matiyani State Education Award" for the year 2018, and his name figured in the list of Teachers, who were likely to be considered for being awarded for the said academic year, as his name is shown to have appeared at S.No.09, as would be apparent from the Government Order No.XXIV-4/2020-10 (17) 2014, dated 29.12.2020. It is much thereafter that the award was made in favour of the petitioner only on 29.12.2020, the petitioner contends to have filed an application later on, on 04.01.2021, for the purposes of the grant of extension of services for two years, which otherwise the awardees are required to be granted under the terms of the Government Order, as provided in the Government Orders dated 09.08.2005 and 22.08.2007. The said petitioner's application dated 04.01.2021, has been decided against him holding, thereof that since at the time when the award was granted to the petitioner i.e. on 29.12.2020, he was working under the reappointment on the grant of benefit of extended academic session, made after the attainment of age of superannuation, it will not be treated as to be, the continuity of the services, and hence by virtue of the impugned order, which is under challenge in the present writ petition, the benefit was rightly declined to be extended to the petitioner.

6. Learned counsel for the petitioner in support of his contentions has placed reliance on a judgment rendered by the coordinate Bench of this Court in a Writ Petition being WPMS No.768 of 2020, "Rohitashav Kunwar Vs State of Uttarakhand & others", where almost akin situation has arisen, where the grant of extension of two years of services to the State awardees was rejected, the coordinate Bench of this Court by the judgment rendered on 25.01.2021, has held that the extended period of services ought to be also included as to be a continuity of the services for the purposes of the extension of the benefit under the Government Order. However, the said judgment of the coordinate Bench, as it has been informed to the Court, that it has been kept in abeyance by the Division Bench in a

Special Appeal, which has been preferred by the State which is presently pending consideration. This Court is of the opinion that on account of the few undisputed facts, which are as follows:-

(A) The petitioner superannuated on 04.01.2020.

(B) Admittedly the petitioner was given the award on 29.12.2020 i.e. after the attainment of age of superannuation.

(C) Since the extension of service under the relevant Rules and the Regulations framed under the Uttarakhand School Education Act, is not a continuation of services, but rather a reappointment.

7. This Court is of the view, that the reappointed period cannot be treated as to be a period in continuance of services for the purposes of extending the benefit, under the Government Orders dated 29.08.2005, and 22.08.2007, thus, if the application, which has been rejected by the respondent Chief Education Officer, is taken into consideration, in fact, it has been rightly observed by the Additional Director, while responding to the correspondence made by the Directorate of School Education, upholding the view taken, that the petitioner would not be entitled for the extension of the two years of services, merely because of the fact that the petitioner was a State awardee, and further it has been opined on the basis of the fact that in view of the Government Order No.320/XXIV-2/2007, dated 22.08.2007, in its paragraph No.2, which contemplates an extension of service for the period of two years has been made applicable to be attracted only in relation to those Teachers, who were the recipient of the award before attainment of the age of superannuation. Hence, the opinion expressed by the Director, School Education, of denying the benefit, because the petitioner had already attained the age of superannuation, and his services cannot be treated to be extended under the Government Order of 2007, is right and an appropriate opinion expressed because it goes in league with the paragraph No.2, of the Government Order dated 22.08.2007.

8. The contention of the petitioner is that he would be treated as to be an awardee of "Shailesh Matiyani State Education Award - 2018", because of the fact that after the extension of his

candidature, the name of the petitioner was placed before the "State Selection Committee", in the meeting, which was held on 27.11.2020. What the petitioner intends to convey, is that in fact the decision pertaining to the entitlement of the petitioner, to be an awardee of the "Shailesh Matiyani State Education Award - 2018", has been taken by the said Committee on 27.11.2020. Hence, he would be treated to have been awarded on 27.11.2020, and not in pursuance to the actual Government Order, which has been referred by this Court, that in fact the petitioner was given an award in pursuance to the Government Order, which was issued after his attainment of age of superannuation. I am of the view, that merely the Committee, deciding an issue of entitlement of the several candidates for the award, that in itself may not lead to a conclusive inference, that it is an actual award, which has been handed over until and unless, the State recognizes the same by issuance of the Government Order and puts it in public domain, the decision making process for granting of an award and actual handing over of an award by the Government Order of 29.12.2020, are entirely distinct to one another and are two distinct aspects. Hence, this argument of the learned counsel for the petitioner that the decision of the Committee, is to be taken as to be the cut-off for the purposes of having been awarded with the "Shailesh Matiyani State Education Award - 2018" is not sustainable; because the decision of the Committee will practically not come into effect, until and unless the State Government issues the Government Order, accepting the recommendations of the Committee, and places the same in public domain, to reckon an acceptance of the awardees by the society at large.

9. The identical view, which has been expressed by the Additional Director, almost on the basis of the same ground, as that given by the Director, Secondary School Education, is not faulted in any manner whatsoever. Hence, this Court is also of the view, that once after the attainment of the age of superannuation, if the petitioner is surviving into the services due to the reappointment granted to him to work upto the end of the academic session, it would be deemed that he was in service as a consequence of the executive and administrative arrangement, to meet the wider objective of the

academic benefit to the students, and it was not an individual right or benefit, which has been created in favour of the petitioner, by the grant of extension of service, hence there cannot be double extension on the basis of award, and hence the extended period of services for the purposes of extension to be granted under the Government Order dated 22.08.2007, would be barred by paragraph No.2, of the said Government Order, and the award being granted after the attainment of the age of superannuation, cannot be treated as to be an award, which was granted when the petitioner was in service in order to provide him an extension of services under the award granted in his favour. Hence, the ratio laid down by the coordinate Bench of this Court, would not be applicable in the circumstances of the present case, and coupled with the fact that the said judgment on being challenged before the Division Bench, has been kept in abeyance. Meaning thereby, it is the said judgment of the coordinate Bench, is in a suspended animation, and is not holding good as on date in the eyes of law as on the date when the writ petition has been argued.

10. In view of the aforesaid, I am of the view, that the impugned orders of rejecting the claim of the petitioner for the extension of the services on the pretext that he was a State awardee, and hence his services should be extended, would not be available to him, because the extension as per the opinion of this Court, is only available to those employees who are the recipient of the award during the subsistence of the principal period of services, and not when they are the recipient of the award, under an extended period of reappointment made by the Education Department, in pursuance to the Government Order giving the benefit of the end of the academic session. Hence, the writ petition lacks merit and the same is accordingly dismissed.

(Sharad Kumar Sharma, J.) 23.09.2021

NR/