Allahabad High Court
Yatendra Kumar vs State Of U.P. And 3 Others on 18 December, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:239207 Court No. - 35 Case :- WRIT - A No. - 8862 of 2022 Petitioner :- Yatendra Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ramesh Chandra Dwivedi Counsel for Respondent :- C.S.C. Hon'ble Vikas Budhwar,J.
Heard Sri R.C. Dwivedi, learned counsel for the petitioner as well as Sri Santosh Kumar, the learned Standing Counsel, who appears for Respondents 1, 2 and 3 in the leading as well as in the connected petitions.
In view of the order, which is being proposed to be passed today, notices are not being issued to the 4th respondent.
The learned counsel for the parties have made a statement at Bar that in view of the order, which is proposed to be passed today, they do not propose to file any response to the writ petition and the writ petitions are being decided on the basis of the documents available on record.
The case of the writ petitioner Yatendra Kumar son of Late Suraj Pal is that there happens to be an Institution by the name Deen Bandhu Inter College, Usaini, District Firozabad, which is recognized under the provisions of U.P. Intermediate Education Act, 1921, the provisions of U.P. Act No.5 of 1982 and 24 of 1971 are applicable.
It is further the case of the writ petitioner that he was appointed as Assistant Teacher in LT Grade Social Science on 01.07.2005 and his appointment was approved by the District Level Committee. The appointment of the petitioner was under Dying in Harness Rules. It is also the case of the writ petitioner that the Committee of Management of the Institution in question stood superseded and thereafter an Authorized Controller was appointed by virtue of the order of the State Government dated 27.07.2018 for a period of six months. One Sri Satish Chandra Sharma, who was officiating Principal of the Institution in question superannuated, pursuant whereto, the writ petitioner, who was the senior most Assistant Teacher LT Grade was allowed to officiate as a Principal since 13.07.2017 approval whereof was accorded by the District Inspector of Schools and his signatures were also attested. On 06.11.2019, the Authorized Controller of the Institution in question proceeded to suspend the writ petitioner, who was working as the Officiating Principal of the Institution in question. As per the statutes, their papers were forwarded for to the District Inspector of Schools for approval. However, it is the case of the writ petitioner that the same was neither approval nor were disapproved, but in the wake of lapsing of 60 days, the suspension of the writ petitioner became unenforceable in the eye of law. The Authorized Controller who was manning the Institution in question, thereafter proceeded to pass an order dated 16.03.2020, whereby it sought to impose two punishments upon the writ petitioner, namely withholding of one increment with non-cumulative effects for a period of 2 years and also infliction of the said punishment in the service record. The writ petitioner claims to have challenged the said order while preferring Writ-A No. 5366 of 2020, in which on 13.07.2020, the following orders were passed:
"Heard Sri Siddharth Khare, learned counsel for the petitioner and learned Standing Counsel for the State.
The argument advanced by learned counsel for the petitioner is that the petitioner who has been officiating as a Principal of Intermediate College which is recognized one under the Intermediate Education Act, 1921 and is on grant-in-aid upto High School, has come to be subjected to a penalty vide impugned order dated 16.03.2020 of which no prior approval has been taken from the U.P. Secondary Education Services Selection Board under Section 21 of the U.P. Secondary Education Services Selection Board Act, 1982. Specific averment to this effect has been made in para 31 of the writ petition.
Even otherwise from the order impugned dated 16.03.2020 it is not reflected as to whether any prior permission had been obtained from the Selection Board in respect of the order impugned.
Prima facie, therefore, the argument advanced by learned counsel for the petitioner appears to have substance and the matter requires consideration.
Let a detailed counter affidavit be filed in the matter by the learned Standing Counsel within a period of four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.
List immediately after the expiry of aforesaid period.
In the meanwhile until further orders of this Court the effect and operation of the order dated 16.03.2020 passed by the Authorized Controller of Deen Bandhu Inter College, Usayni, District Firozabad shall remain stayed."
Post that, two orders are stated to have been passed by one of Authorized Controller dated 29.07.2020, whereby though the punishment order was stayed by this Court was directed not to be implemented, but the writ petitioner was directed to be placed under suspension, coupled with the another order dated 17.08.2020 passed by the District Inspector of Schools, Firozabad, whereby one Smt. Poonam Singh, Assistant Teacher, was made Principal of the Institution in question. Both the orders were subject matter in Writ-A No.10368 of 2020 preferred by the writ petitioner, in which on 09.12.2020, the following orders were passed:
"Learned Standing Counsel appearing for respondent Nos. 1 to 3 prays for and is granted one month's time to file a counter affidavit. Notice shall issue to respondent Nos. 4 and 5 returnable within the same period. List thereafter.
Prima facie the Court finds itself unable to sustain the order impugned for reasons which stand recorded hereinafter.
Undisputedly the petitioner who was initially suspended on 06 November 2019 suffered a punishment which came to be imposed by the Authorised Controller on 16 March 2020. That order has been stayed by the Court in Writ-A No. 5366 of 2020. It is in that backdrop that the Authorised Controller in the impugned order fallaciously records that the order of suspension would revive. Matter requires consideration.
Until further orders of the Court the orders of 29 July 2020 and 17 August 2020 shall remain stayed."
During the pendency of the said writ petition, according to the writ petitioner, the Authorized Controller stood removed and the Committee of Management of the Institution in question came into power and by virtue of the decision dated 26.07.2021 the orders dated 16.30.2020 and 29.07.2020 were recalled. Thereafter Writ-A No. 10368 of 2020, Yatendra Kumar Vs. State of U.P., came up for consideration before this Court, in which on 10.08.2022, following orders were passed:
"This writ petition has been filed challenging the punishment orders dated 29.7.2020 and 17.8.2020 which were stayed vide order of this Court dated 9.12.2020.
During pendency of this writ petition, above referred orders were recalled.
Learned counsel for petitioner submits that despite the above referred orders were recalled, salary for certain period has not been paid till date to the petitioner.
Therefore, in regard to punishment order, this writ petition has become infructuous. So far as other grievance of the petitioner regarding payment of outstanding salary is concerned, same will be considered by the concerned respondents expeditiously, preferably within a period of six months after fresh representation is submitted by the petitioner within a period of one month from today.
With the aforesaid direction, this writ petition is disposed of."
According to the writ petitioner, thereafter on 27.05.2021, the District Inspector of Schools, Firozabad proceeded to attest the signature of the writ petitioner as Officiating Principal. An order is also stated to have been passed on 26.05.2022, whereby the claim of the writ petitioner for payment of salary during the period when he was placed under suspension and other benefits, which the writ petitioner was to enjoy were denied on the pretext that already Writ-A No. 10368 of 2020 is pending before this Court and the order of the suspension has been stayed, thus he is not entitled to the said benefits.
Questioning the said order, the writ petitioner preferred the leading writ petition.
In the meantime, according to the writ petitioner, on 31.03.2023, District Inspector of Schools, Firozabad proceeded to issue a recommendation/ communication to the Director of Education, Madhyamik, Prayagraj, recommending the case of the writ petitioner for payment of all benefits and on 17.04.2023, the Joint Director of Education on behalf of the Director of Education, Uttar Pradesh issued a communication to the District Inspector of Schools, Firozabad seeking inputs and comments on certain aspects. However, on 14.07.2023, now the impugned order has been passed by the District Inspector of Schools, Firozabad, whereby the claim of the writ petitioner has been denied on the premise that the leading writ petition, being Writ-A No.8862 of 2022, questioning the order dated 26.05.2022, is pending and further the writ petitioner is not entitled to any benefits in that regard. Assailing the order dated 14.07.2022 passed by the District Inspector of Schools, Firozabad, the writ petitioner has filed the connected writ petition.
This Court while entertaining the connected writ petition by order dated 08.12.2023 tagged the leading writ petition with the connected writ petition while passing the following order: -
"The contention of the learned counsel for the writ petitioner is that earlier the writ petitioner was placed under suspension on 05.11.2019 thereafter ultimate punishment order was passed on 16.03.2020 which came to be stayed by this Court on 13.07.2020 in Writ A No. 5366 of 2020, the ultimate punishment order came to be recalled by the authorised controller on 29.07.2020. However, an order is stated to have been passed treating the writ petitioner to be under suspension which was stayed on 09.12.2020 by this Court in Writ A No. 10368 of 2020 and the said writ petition came to be decided on 08.10.2022 observing that since both the orders stands recalled thus the writ petition stood disposed of directing the respondents to consider the payment of the outstanding dues. As per the writ petitioner though on 17.04.2023 the Joint Director of Education (Arth) on behalf of the Director of Education (Secondary) Uttar Pradesh issued a communication for allotment of the fund to the District Inspector of Schools, Firozabad however, now the impugned order has been passed by the District Inspector of Schools, Firozabad on 14.07.2023 denying the benefits in the wake of the fact that already Writ A No. 8862 of 2022 has been preferred by the writ petitioner questioning the order dated 26.05.2022.
Put up this case as fresh on 12.12.2023 along with records of Writ A No. 8862 of 2022,showing the particulars of the counsels and the parties."
Sri R.C. Dwivedi, learned counsel for the writ petitioner in both the writ petitions submits that the orders impugned in both the writ petitions are unsustainable in the eyes of law and they cannot be sustained for a single moment, particularly in view of the fact that the same proceeds on totally incorrect perspective. Elaborating the said submission, learned counsel for the writ petitioner submits that it is true that the writ petitioner was placed under suspension while he was working as an Officiating Principal on 06.11.2019 and there was no approval of the suspension and a period of 60 days even lapsed. A punishment order is stated to have been passed by the Authorized Controller on 16.03.2010, which was stayed by this Court in Writ-A No.5366 of 2020 on 13.07.2020 and thereafter on 29.07.2020, the writ petitioner was declared to be under suspension though the punishment order was stayed and another order was passed on 17.08.2020 by the District Inspector of Schools, Firozabad granting officiating charge to somebody else and both the orders were also stayed on 09.12.2020 in Writ-A no.10368 of 2020 and once the punishment and suspension orders stood recalled by the Committee of management of the Institution in question on 29.07.2021 and the same stood noted in Writ-A No. 10368 of 2020 decided on 10.08.2022, then there was no reason to deny the benefits to the writ petitioner, particularly when his signatures as an Officiating Principal stood attested. He further submits that till day, there is no departmental enquiry conducted against the petitioner and he has not been placed under suspension, however, papers have been transmitted for payment of consequential benefits. According to him, mere pendency of the leading petition, which has been observed in the order dated 14.07.2023 of the District Inspector of Schools, which is also challenged before this Court would not be a ground to denude him of the benefits.
Sri Santosh Kumar, learned Standing Counsel, while countering the submission of the learned counsel for the writ petitioner submits that the writ petitioner may be right that the orders either suspending the writ petitioner on 06.11.1999 or the punishment order dated 16.03.2020 had been stayed and there is no approval of the same, thus according to him, the writ petitioner prima facie may be entitled to benefit, however, according to him, since these crucial aspects have been adverted to, thus the order in question be set aside, matter be remitted back.
I have heard learned counsel for the parties and perused the record.
It is not disputed that the writ petitioner was placed under suspension on 06.11.1999, punishment order was passed on 16.03.2020. The said orders were stayed by the Court and eventually Writ-A No.10368 of 2020 stood disposed of on 10.08.2022, wherein the order dated 29.07.2020 suspending the writ petition and 17.08.2020 according officiation to the some other person has been stayed.
On a specific query being made to the learned Standing Counsel as to whether there happens to be any order approving the punishment of the writ petitioner or not, and whether the writ petitioner's suspension was at any point of time approved, nothing is forthcoming from the respondents side. Thus, in the opinion of the Court, once the suspension and the punishment orders do not stand approved by the approving authority as per the Statute, it becomes totally unenforceable. Once these are the position, then obviously the delinquent/ incumbent is entitled to the benefits.
Since these aspects of the matter have not been dealt with and addressed to in the order impugned, thus in the opinion of the Court, the order impugned cannot be sustained and the same is not only vulnerable and also stands vitiated.
Though in normal circumstances, this Court would have called upon the Committee of Management while issuing notice to them to submit their response pursuant to their representation and in view of the order, which is proposed to be passed and the documents which are available on record, the Committee of Management shall have say post remand.
Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being decided in the following manner: (a) The order dated 26.05.2022 impugned in the leading writ petition as well as the order dated 14.07.20203 impugned in the connected petition passed by the District Inspector of Schools, Firozabad are set aside; (b) The matter stands remitted back to the District Inspector of Schools, Firozabad to pass a fresh order bearing in mind the observations made hereinabove within a period of three months from the date of production of certified copy of the order after putting to notice the writ petitioner and the Committee of Management of the Institution in question.
With the aforesaid observations the writ petition stands disposed off.
Order Date :- 18.12.2023 N.S.Rathour