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2019 Supreme(All) 1367
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Rajendra Prasad Pal and another – Appellant
Versus
State of U.P. and others – Respondent
Service Single No.17715 of 2016, 30178 of 2017
Decided on : 09-04-2019
For the Petitioner: Sharad Pathak, Laltaprasad Misra Counsel
For the Respondent: C.S.C., Ajay Kumar, Anand Prakash Pandey, Kshemendra Shukla, Neeraj Chaurasiya, Rakesh K. Srivastava, Vijay Kumar Tripathi
The appointments of the petitioners appear to be genuine and have been made strictly in accordance with law.
Headnote:
Natural Justice - Violation - Uttar Pradesh recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Teachers) Rules, 1978, Uttar Pradesh Recognized Basic Schools (Junior High Schools) (Recruitment & Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1884 - The appointments of the petitioners appear to be genuine and have been made strictly in accordance with law. The order dated 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh, is quashed. A writ in the nature of mandamus is issued commanding the opposite parties no.1 to 5 to allow the petitioners to work on the post of Assistant Teacher and Clerk respectively in the educational institution in question and pay them salary of their respective post regularly and they shall be provided all consequential service benefits. Since the order dated 5.7.2016 passed by the Additional Director of Basic Education, U.P., Allahabad has been quashed, therefore, the said order shall not be given effect to against the petitioners of both the writ petitions.
Fact of the Case:
The petitioners were appointed as Assistant Teacher and Assistant Clerk in an educational institution. The appointment of the petitioners was refused to be recognized and their salary was directed to be recovered. The Committee of Management of the Institution challenged the order on the ground of lack of opportunity of hearing.
Finding of the Court:
The order dated 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh, is quashed. A writ in the nature of mandamus is issued commanding the opposite parties no.1 to 5 to allow the petitioners to work on the post of Assistant Teacher and Clerk respectively in the educational institution in question and pay them salary of their respective post regularly and they shall be provided all consequential service benefits.
Issues: Violation of natural justice, validity of appointments, entitlement of salary, lack of opportunity of hearing
Ratio Decidendi: The appointments of the petitioners appear to be genuine and have been made strictly in accordance with law. The order dated 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh, is quashed. A writ in the nature of mandamus is issued commanding the opposite parties no.1 to 5 to allow the petitioners to work on the post of Assistant Teacher and Clerk respectively in the educational institution in question and pay them salary of their respective post regularly and they shall be provided all consequential service benefits.
Final Decision: The order dated 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh, is quashed. A writ in the nature of mandamus is issued commanding the opposite parties no.1 to 5 to allow the petitioners to work on the post of Assistant Teacher and Clerk respectively in the educational institution in question and pay them salary of their respective post regularly and they shall be provided all consequential service benefits.
JUDGMENT :
Hon'ble Rajesh Singh Chauhan, J.
1. In both the aforesaid writ petitions, the order under challenge is 5.7.2016 passed by the Additional Director of Basic Education, Allahabad, Uttar Pradesh.
2. In the first writ petition, which is Writ Petition No.17715 (S/S) of 2016, there are two petitioners, namely, Rajendra Prasad Pal, who is working as Assistant Teacher in Nav Jyoti Purva Madhyamik Vidyalaya, Surendra Nagar, Hajpura, Faizabad (now Ambedkar Nagar) (hereinafter referred to as "Institution") and the second petitioner, namely, Krishna Kumar Upadhyay is working in the Institution as Assistant Clerk.
3. By means of the impugned order dated 5.7.2016, appointment of the petitioners has been refused to be recognized and the salary paid to the petitioners during service period has been directed to be recovered from the petitioners.
4. The connected Writ Petition No.30178 (S/S) of 2017 has been filed by the Committee of Management of the Institution in question against the same impugned order dated 5.7.2016 challenging the same on the ground that the said order has been passed without affording any opportunity of hearing to the Committee of Management.
5. Since the common order i.e. order dated 5.7.2016 has been assailed in the aforesaid writ petitions, therefore, both the writ petitions are being decided by the common judgment. However, facts of Writ Petition No.30178 (S/S) of 2017 shall be dealt separately in this order.
6. Heard Sri Sharad Pathak, learned counsel for the petitioners in Writ Petition No.17715 (S/S) of 2016 and Sri Kshemendra Shukla, learned counsel for the petitioner in Writ Petition No.30178 (S/S) of 2017. Learned Standing Counsel has argued on behalf of the State-respondents, Sri Ajay Kumar has argued on behalf of the District Basic Education Officer, Faizabad and Sri Rakesh Kumar Srivastava has argued on behalf of opposite parties no.6 & 7. Since Sri Kshemendra Shukla has filed writ petition on behalf of the Institution in question i.e. Writ Petition No.30178 (S/S) of 2017, therefore, his appearance has been noted on behalf of opposite party no.5, which is Committee of Management of the Institution in question in Writ Petition No.17715 (S/S) of 2016.
7. It would be apt to indicate, at the outset, that one Mr. Pramod Kumar Pandey, Advocate has filed an application on 13.1.2019 i.e. application for taking short counter affidavit on record on behalf of opposite party no.7. In the said application, opposite party no.7 has precisely submitted that he does not want to contest and oppose Writ Petition No.17715 (S/S) of 2016 as he had filed the writ petition on the instructions of opposite party no.6 and had given his Vakalatnama to Sri Rakesh Kumar Srivastava, Advocate, but now he is engaging Mr. Pramod Kumar Pandey as his counsel. Paragraph no.2 of the aforesaid short counter affidavit of opposite party no.7 is necessary to be reproduced herein below:-
"That the deponent has been arrayed as opposite party no.7 in the writ petition, the deponent is filing his affidavit in following terms.
(i) That the deponent do not want to contest and oppose the present writ petition. Actually the deponent, who was working as clerk, had submitted his resignation on 18.08.1985 in his own hand writing, as Nav Jyoti Pruva Madhyamik Vidyalaya Surendra Nagar Hajpura Faizabad now Ambedkar Nagar was not in grant-in-aid list at that point of time, copy of which resignation is available at page no.39 of the writ petition.
(ii) That after resignation the deponent engaged himself in private Job in State of Gujrat. When deponent received information from Sri Ram Sahay Tripathi that school has been taken in to grant-in-aid list he contested the matter on his advice, but now he do not want to contest the matter anymore.
(iii) That earlier deponent, on the opinion of Sri Ram Sahay Tripathi signed one Vakalatnama and few papers, by means of which Sri Rakesh Srivastava Advocate was engaged. Now deponent is engaging Sri Pramod Pandey Advocate to repr
