Allahabad High Court
Kedar Nath Shukla vs The State Of U.P. And 4 Others on 28 February, 2023
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 9 Case :- WRIT - A No. - 2770 of 2023 Petitioner :- Kedar Nath Shukla Respondent :- The State Of U.P. And 4 Others Counsel for Petitioner :- Shivendu Ojha,Sneh Pandey,Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Prakash Padia,J.
Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned cousnel for the petitioner and learned Standing Counsel for respondent Nos.1 to 4.
The petitioner has preferred the present writ petition with the following prayer:-
"(a) A writ order or direction in the nature of Mandamus commanding the Regional Level Regularization Committee headed by the Joint Director of Education as Chairman to consider and decide case of the Petitioner for regularization independently under the provisions of the Section 33-F of the U.P. Secondary Education Service Selection Board Act.
(b)A writ order or direction in the nature of Mandamus commanding the Respondent-Authorities to release arrears of salary of the Petitioner from the month of July, 2022 including the current salary as and when it comes due.
(c)A writ order or direction in the nature of Mandamus commanding the Respondent-Authorities to provide all other consequential benefits in favour of the Petitioner like retiral dues and other consequential benefits by passing an appropriate order, as the Petitioner is going to retire from the service as on 31st March, 2023."
It is argued by Sri R.K. Ojha, learned Senior Counsel that in spite of the fact that the petitioner is entitled for consideration of his case for regularization in terms of the provisions of Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 but till date the same has not been considered. It is further argued that the on the pretest that the matter for regularization is pending, his salary was also not paid since month of July, 2022. It is further argued that the petitioner was appointed as Assistant Teacher on01.08.1985 and he was promoted in L.T. Grade on 01.07.1991 and since then, he was getting his salary regularly. It is argued that the petitioner will be superannuated on 31.03.2023. In support of his case, Sri R.K. Ojha, learned Senior Counsel placed reliance upon a judgment passed by Lucknow Bench of this Court in Writ A No.7931 of 2022 decided on 10.01.2023. The aforesaid order is reproduced below:-
"Heard Shri J.N. Mathur, learned Senior Counsel assisted by Ms. Harsha Yadav, learned counsel for the petitioner; Shri Kuldeep Pati Tripathi, learned Additional Advocate General assisted by Shri Ran Vijay Singh, learned Additional Chief Standing Counsel for the State and Shri R.K.S. Suryavanshi, learned counsel appearing for U.P. Secondary Education Services Selection Board.
Present petitions have been filed by the petitioners who claim to be appointed by virtue of powers conferred under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 (hereinafter referred to as 'the Act') and claim that by virtue of the provisions incorporated under Section 33C and 33G of the Act, they were entitled for consideration for regularization. Although the relief in that regard has been prayed in Prayer No.1, it is stated that subsequently, the petitioners had given a statement of not pressing the relief as claimed in Prayer No.1.
Since the issues raised in the writ petitions are common, the interim prayers are being decided by means of this common order.
For the sake of brevity, the facts as disclosed in Writ - A No.7931 of 2022 are being considered.
The petitioners - who are 11 in number - claim to have been appointed by virtue of Section 18 on various dates but prior to 2000. The petitioners had earlier approached this Court by filing writ petitions and in the case of some of the petitioners, orders were passed directing for consideration of their claim for regularization under Section 33G of the Act. It is common ground that no orders have been passed in respect of the petitioners pertaining to their claim for regularization. It is also informed that in some of the cases, the process was initiated but has not been concluded.
The present writ petition is basically challenging the action of the respondent no.4 whereby salary of the petitioners have been stopped and they have not been paid salary for the months June, July, August, September, October and November, 2022 mainly on the ground that the issue in the case of petitioners is covered by the judgment of the Hon'ble Supreme Court dated 26.8.2020 in the case of Sanjay Singh and Ors. v. State of U.P. & Ors.; Civil Appeal No.8300 of 2016.
In that regard, the submission of learned counsel for the petitioners is that the issue raised and decided by the Hon'ble Supreme Court in the case of Sanjay Singh & Ors.(supra) will not have any effect on the services rendered by the petitioners as the petitioners were appointed in terms of the mandate of Section 18 of the Act whereas the persons who were affected by the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh & Ors. (supra) are the persons who were not appointed under Section 18 of the Act and thus, the petitioners are not covered by the said judgment, as is trying to be misinterpreted by the respondents.
Learned counsel for the petitioners further draws the attention of this Court to a Division Bench judgment of this Court dated 2.11.2022 passed in the case of Dinesh Singh v. State of U.P. & Ors.; Special Appeal No.458 of 2022 wherein the question with regard to applicability of the judgment of the Hon'ble Supreme Court in the case of Sanjay Singh & Ors. (supra) was considered and the Court was of the view that the case decided by the Hon'ble Supreme Court in the case of Sanjay Singh & Ors. (supra) was issue with regard to the petitioners who were appointed on ad-hoc basis but do not have any statutory right to be regularized in terms of the Act.
In the present case, no orders have been passed stopping the salary payable to the petitioners as well as the fact remains that the case for regularization is pending in respect of each of the petitioners either under Section 33C or 33G and has not attained finality; prima-facie there is no reason for non-payment of salary to the petitioners specifically by the sanctioning authority at District Pratapgarh and District Bahraich.
Learned Additional Advocate General who had appeared to assist this Court was called upon to make a specific assertion with regard to the stand of the State Government with regard to payment of salary to the persons whose claims are pending consideration for regularization either under Section 33C or under Section 33G of the Act and as to whether the policy of non-payment of salary is uniformally applied in the entire State of Uttar Pradesh or not; he based upon instructions so received sought further time and informed the Court that it is the DIOS who is the competent authority to pay the salary and he has taken the decision, although he is not in a position to make a statement as to whether the similar orders are being passed in the entire State of Uttar Pradesh or not.
Learned Additional Advocate General has specifically raised the issue with regard to maintainability as well as the fact that in certain places in the writ petition, there appears to be contradiction in the pleadings; he argues that the petitioners had earlier approached this Court seeking a relief for regularization under Section 33C and 33G of the Act in respect of different petitioners and thus, the second writ petition specifically when they have deleted the Prayer No.1 would not be tenable.
He further argues that there are inconsistent pleadings in the writ petition as at some places, the petitioners have stated that they are approaching this Court for the first time for the relief.
The said preliminary objection merit rejection for two reasons; firstly, that the petitioners themselves had deleted their Prayer No.1 which has already been granted to the petitioner in different writ petitions and they confined their writ petition to Prayer No.2 being aggrieved of non-payment of salary without any orders and contrary to law.
Inconsistent pleadings referred to by learned Additional Advocate General are also as a result of two prayers made in the writ petition with regard to relief for regularization which having been deleted by the petitioners themselves, prima-facie there is no inconsistency in the pleadings, as such, on both grounds, preliminary objection merits rejection and is accordingly rejected.
Learned Additional Advocate General further argues that the case of Sanjay Singh & Ors. (supra) is applicable even for the petitioners who are seeking regularization and also argues that the Division Bench judgment as cited by learned counsel for the petitioners is not applicable as the same pertains to an issue whereby the issue of regulraization was also under consideration.
Prima-facie, the said stand may not be tenable in view of the specific clarification issued in the case of Dinesh Singh (supra) coupled with the fact that there is nothing on record to demonstrate that the State has taken the stand that the judgment in the case of Sanjay Singh and Ors. (supra) would apply even in the case of the petitioners whose case for regularization is under consideration.
Prima-facie, considering the ratio of the judgment in the case of Sanjay Singh & Ors. (supra) as well as the clarification as recorded in the case of Dinesh Singh (supra), there is no reason why the salary should not be paid to the petitioners pending consideration of their application either under Section 33C or 33G of the Act, as the case may be.
Thus, as an interim measure, respondents are directed to ensure payment of salary to the petitioners on a month to month basis. The arrears of salary which has not been paid shall be paid to the petitioners within a period of two months from today.
Learned Standing Counsel may file a counter affidavit within four weeks.
Rejoinder affidavit shall be filed within two weeks thereafter. "
In this view of the matter, a prayer has been made to direct the respondent No.2/Regional Level Committee to consider the case of the petitoner for regularization in terms of Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982 and also direct concerned respondent to release the salary of the petitioner month by month as well as arrears of the salary be also paid to him.
Learned Standing Counsel argued that the respondent No.2 will pass appropriate orders in the matter most expeditiously and preferably within a period of two months.
In view of the under taking given by learned Standing Counsel, a mandamus is issued to the respondent No.2 to pass appropriate order in the matter most within two months in terms of Section 33-F of the U.P. Secondary Education Services Selection Board Act, 1982.
An interim mandamus is also issued directing the respondents to ensure payment of salary to the petitioners on a month to month basis. The arrears of salary which has not been paid shall be paid to the petitioners within a period of two months from today.
Learned Standing Counsel may file a counter affidavit within four weeks.
Rejoinder affidavit shall be filed within two weeks thereafter.
List thereafter.
Order Date :- 28.2.2023/saqlain