Allahabad High Court
Shobha Ram Dhiman vs State Of U.P. And 5 Others on 31 October, 2022
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 36 Case :- WRIT - A No. - 1299 of 2020 Petitioner :- Shobha Ram Dhiman Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Chandra Shekher Singh,V.K. Singh, Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Saumitra Dayal Singh,J.
1. Heard Sri V.K. Singh, learned Senior Advocate, assisted by Sri Chandra Shekhar Singh, learned counsel for the petitioner and learned Additional Chief Standing Counsel for the State.
2. Present writ petition has been filed to assail the order dated 30.10.2019 passed by the Regional Committee rejecting the petitioner's claim for regularisation made under Section 33F of the Uttar Pradesh Secondary Education Services Selection Boards Act, 1982 (hereinafter referred to as the 'Act'). Further, Mandamus has been sought to allow the petitioner to work and be paid full salary.
3. The case has a chequered history. Earlier, the petitioner was appointed on a short-term vacancy arising on the post of Lecturer that fell vacant on 28.09.2022, owing to the then incumbent to the post Sri Subhash Singh having gone on leave. To the appointment of the petitioner, financial sanction was granted by the Account Officer on 30.06.1993. Despite that, the petitioner was not paid due salary from the date of his joining service i.e. 24.03.1993. He first filed writ petition no.27233 of 1993 wherein under an interim order dated 11.08.1993, the petitioner was directed to be paid current salary.
4. Despite such interim protection, the Committee of Management of the institution namely-Public Higher Secondary School, Sampla Begumpur, District-Saharanpur proceeded to advertise the post afresh and appointed one Sri Satyapal Singh in place of the petitioner, on 20.02.1994. On the objection raised by the petitioner to such appointment, the then District Inspector of Schools (in short 'DIOS'), Saharanpur, by his order dated 13.04.1994 disapproved the appointment of Sri Satyapal Singh and again declared the appointment of the petitioner to be proper. That order was challenged by Sri Satyapal Singh in Writ Petition No.13573 of 1994. The operation and effect of the order dated 13.04.1994 was stayed and at the same time, that petitioner (Sri Satyapal Singh) was directed to represent his case before the DIOS, afresh. That claim was again rejected on 24.05.1997. This led to the second writ petition filed by Sri Satyapal Singh being writ petition no.23164 of 1994. Those two petitions and the earlier petition filed by the petitioner being writ petition no.27233 of 1993 were heard together and disposed of vide order dated 31.03.1995, leaving the parties/petitioner to seek appropriate remedy under the Removal of Difficulties Order.
5. At that stage, the Deputy Director of Education vide his order dated 17.10.1995 decided the dispute against the petitioner. It led to the second writ petition filed by the petitioner being writ petition no.32506 of 1996. It was disposed of vide order dated 02.04.1997 directing the petitioner to approach the respondent-DIOS. This time the claim of the petitioner was again rejected by order dated 03.05.1997 on the reasoning, the petitioner had not worked at the institution. That conclusion was reached solely on the basis of absence of his signatures on the attendance register. At that stage, the petitioner filed a third writ petition being Writ A No.19063 of 1997 (Shobha Ram Dhiman Vs. DIOS Saharanpur And Others). Upon exchange of affidavits, the said writ petition was initially allowed by order dated 02.01.2018 in the following terms :
"Therefore, after consideration of the entire material on record, it is clear that the impugned order dated 03.05.1997 passed by the respondent no.1 was not passed in accordance with law and as per the direction of this Court dated 02.04.1997 in Writ Petition No.32506 of 1995. It was passed only on the basis of Attendance Register produced by the Principal of the Institution, who was not favourably inclined towards the petitioner, as clear from the Counter Affidavit dated 23.09.1993 of the Manager of the Institution, Counter Affidavit dated 21.03.1996 of the respondent no.1 filed in Writ Petition No.32506 of 1995 clearly admitting the due selection and grant of financial sanction to the petitioner. Further, the rival claim of Sri Satya Pal Singh having been extinguished, their remains no dispute towards his appointment on the post in question. The repeated approval of the appointment of the petitioner on record, as pointed out by the petitioner from the record stated above prove the fact that the findings recorded by the respondent no.1 in the impugned order dated 03.05.1997 are illegal and the order is hereby quashed.
Since the petitioner is still working, he is entitled to be considered for regularization of his services as per Section -33-E of the U.P. Act No.5 of 1982, as per the prayer made by the Counsel for the petitioner.
The writ petition is allowed. No orders as to costs."
6. It is also not disputed that upon a modification application, further direction came to be issued on 08.03.2018 directing for payment of 50% of arrears of salary. Those orders became subject matter of challenge at the instance of the DIOS as also the Committee of Management in two Special Appeal proceedings being Special Appeal Defective Nos.583 of 2018 (District Inspector of Schools Vs. Shobha Ram Dhiman And 2 Ors) and 584 of 2018 (Public Higher Secondary School, Sampla Begumpur Vs Sobha Ram Dhiman And 2 Ors). Both Special Appeals came to be heard together. They were partly allowed by order dated 12.11.2018 on the following terms :
"We, therefore, partly allow the appeal and set aside the order dated 8th March, 2018 passed on the modification application but at the same time we direct that the respondent no. 1 would be entitled to all consequential benefits in view of the order dated 3rd May, 1997 having been quashed namely his right to receive salary which we reiterate as 50% of the arrears with effect from the date of the financial sanction granted by the Account Officer on 30th June, 1993. The respondent no.1 was wrongfully prevented from discharging his duties in the Institution as his appointment was valid. This would also be in consonance with law, inasmuch as, the District Inspector of Schools had been intimated for grant of approval and the period of one week had expired as contemplated under the Second Removal of Difficulties Order resulting in the deemed approval of the respondent no. 1. Consequently, the respondent no. 1 would be entitled to 50% of the salary from the said date and the respondent no. 1 shall be allowed to function in the Institution and be paid his salary accordingly.
It will be open to the competent authority to consider the question of regularization and consequential continuance of the respondent no. 1 in the Institution that may be permissible as per the Rules framed under the U.P. Secondary Education Services Selection Board Act, 1982 which shall be done within a period of three months. The appeal is therefore partly allowed to the aforesaid extent and the judgment dated 02.01.2018 stands modified accordingly."
7. It is also on record, the above order of the Division Bench was assailed by the DIOS Saharanpur in Special Leave to Appeal (C) No.3407 of 2019. It came to be dismissed by the following order dated 08.02.2019 :
"Heard learned counsel for the petitioner.
Application for exemption from filing O.T. is allowed.
We are not inclined to interfere with the impugned order in exercise of our jurisdiction under Article 136 of the Constitution of India.
However, we make it clear that the impugned order shall not be treated as a precedent.
The special leave petition is accordingly dismissed.
Pending applications, if any, shall also stand disposed of."
8. Further review application filed in those proceeding also came to be rejected by order dated 12.12.2019. The matter having thus attained finality, the second leg of litigation arose between the parties with respect to payment of arrears of salary. Upon contempt proceedings being drawn up against the said authorities, finally salary payment to the extent of 50% of arrears were paid out to the petitioner. Despite such final adjudication, it remains a fact, the petitioner was not allowed to join the institution and has not been paid salary since 02.01.2018 (date of decision of the learned Single Judge) till the date of his retirement 31.03.2020 (upon giving sessions benefit). Further, the petitioner's claim for regularisation made under Section-33F of the Act has been rejected.
9. The reason to reject the claim for regularisation is disclosed in the impugned order through five reasons contained therein. The relevant part of the impugned order dated 30.10.2019 reads as below:
^^e.Myh; lfefr }kjk /kkjk&33&p esa iz[;kfir fu;eksa ds vkyksd esa ftyk fo|ky; fujh{kd] lgkjuiqj }kjk miyC/k djkbZ xbZ] vk[;k dk ijh{k.k fd;k x;kA ijh{k.kksijkUr fuEu rF; izdk'k esa vk;sA /kkjk& 33 p&¼1½ ¼d½ esa mfYyf[kr mRrj izns'k ek/;fed f'k{kk lsok vk;ksx ¼dfBukbZ;ks dk nwj djuk½ ¼f}rh;½ vkns'k 1981 ds iSjk&5 es nh xbZ O;oLFkk ds vuqlkj ;kph Jh 'kksHkkjke /kheku fu;qfDr ls iwoZ Jh lqHkk"k flag l0v0 ifCyd b.Vj dkyst] lkaiyk csxeiqj] lgkjuiqj ds vodk'k ij tkus ls gqbZ vYidkfyd fjfDr ds C;kSjs ds ckjs esa ftyk fo|ky; fujh{kd] lgkjuiqj dks u rks lwfpr fd;k x;k vkSj u gh lsok;kstu dk;kZy; ls vkSj u gh de ls de nks lekpkj i=ksa esa ftudk mRrj izns'k esa I;kZIr ifjpyu] lkoZtfud foKkiu ds ek/;e ls vkosnu i= vkef=r fd;s x;sA Jh lqHkk"k flag ds vodk'k ij tkus ds dkj.k vYidkfyd fjfDr ds QyLo:i fnukad 01-02-93 dks foKfIr fo|ky; ds uksfVl cksMZ ij pLik dh xbZA 2& uksfVl cksMZ ij pLik foKfIr esa fjfDr vuqlwfpr tkfr oxZ ds fy, vkjf{kr Fkh rFkk foKfIr esa mfYyf[kr fjfDr dh izfr gsrq Lukrd ds fo"k; esa fgUnh] vaxzsth ls mRrh.kZ ekaxk x;k Fkk tcfd ;kph Jh 'kksHkkjke /kheku dh Lukrd dh fMxzh dk voyksdu djus ij ik;k x;k fd ;kph Jh 'kksHkkjke /kheku vFkZ'kkL=] lkfgfR;d vxzsth ,oa lekt'kkL=] lkekU; vxzsth Lukrd ds fo"k; ds lkFk izf'kf{kr ¼ch0,M0½ gSA bl izdkj ;kph Jh 'kksHkkjke /kheku ds Lukrd ds fo"k; fo|ky; ds uksfVl cksMZ ij pLik foKfIr ls fHkUu gS vkSj vuqlwfpr tkfr ds fy, fudkyh xbZ foKfIr ls fHkUu oxZ@ tkfr ds vH;FkhZ Jh 'kksHkkjke /kheku dh fu;qfDr dh xbZA 3& uksfVl cksMZ ij pLik foKfIr fnukad 01-02-1993 ds vuqlkj vkosnu i= iz/kkukpk;Z ds fo|ky; ¼dk;kZy;½ esa izkIr gksus pkfg, Fks] rRdkyhu iz/kkukpk;Z dh vk[;k fnukad 24-06-1993 ds vuqlkj ;kph Jh 'kksHkkjke /kheku dk vkosnu i= iz/kkukpk;Z] ifCyd b.Vj dkyst] lkaiyk& csxeiqj] lgkjuiqj ds fo|ky; ¼dk;kZy;½ esa izkIr ugha gqvk FkkA 4& mRrj izns'k ek/;fed f'k{kk lsok vk;ksx ¼dfBukbZ;ksa dks nwj djuk½ vkns'k 1981 ds fcUnq la0&5¼4½ esa mYys[k gS fd ftyk fo|ky; fujh{kd ifjf'k"V esa fofufnZ"V xq.kkadks ds vk/kkj ij loksZRre vH;fFkZ;ks dks pqusxkA dk;kZy; i=koyh esa miyC/k vfHkys[kks esa bl rjg dk dksbZ Hkh vfHkys[k miyC/k ugha gS ftlesa fo|ky; }kjk xq.kkad dk fu/kkZj.k djds dk;kZy; esa miyC/k djk;k x;k gksA 5& mRrj izns'k ek/;fed f'k{kk lsok p;ucksMZ vf/kfu;e&1982 dh /kkjk&33&p ¼1½ ¼x½ ds vuqlkj ,slh fu;qfDr ds fnuakd ls mRrj izns'k ek/;fed f'k{kk lsok p;u cksMZ la'kksf/kr vf/kfu;e&2001 ds izkjEHk gksus ds fnukad rd laLFkk esa fujUrj dk;Z dj jgk gksA ;kph Jh 'kksHkkjke /kheku }kjk fo|ky; izcU/kd@iz/kkukpk;Z dks lacksf/kr vius izkFkZuki= fnukad 16-10-2019 esa fyf[kr vfHkdFku fd;k x;k gS fd ^^vkt fnukad 16-10-2019 dks izFke ckj izcU/kd egksn; ls vuqjks/k djrk gWw fd ekuuh; mPp U;k;ky; ds vkns'k ds vuqikyu esa eq>s lgk;d v/;kid in ij dk;ZHkkj xzg.k djkus dh laLrqfr iznku djsaA Jheku th esjs }kjk iwoZ es dk;ZHkkj xzg.k djus laca/kh izkFkZuki= izcU/kd ds le{k izLrqr ugha fd;kA** mDr vfHkdFku ls Li"V gS fd Jh 'kksHkkjke /kheku fu;qfDr ds fnukad ls mRrj izns'k ek/;fed f'k{kk lsok p;u cksMZ la'kksf/kr vf/kfu;e&2001 ds izkjEHk gksus ds fnukad rd fo|ky; esa fujUrj dk;Zjr ugha jgs gSaA bl izdkj ;kph Jh 'kksHkkjke /kheku mRrj izns'k ek/;fed f'k{kk lsok p;u cksMZ vf/kfu;e&1982 dh /kkjk&33&p ¼1½ ¼x½ esa izfrikfnr O;oLFkk ds vUrxZr fofu;ferhdj.k gsrq mi;qDr ugha gSA vr% e.Myh; lfefr }kjk lE;d~ fopkjksijkUr loZlEefr ls ;kph Jh 'kksHkkjke /kheku rnFkZ lgk;d v/;kid ifCyd b.Vj dkyst] lkaiyk csxeiqj] lgkjuiqj ds fofu;ferhdj.k ds izdj.k dks ekuuh; mPp U;k;ky;] bykgkckn }kjk ;kfpdk la0 19063@1997 esa ikfjr vkns'k fnukad 08-03-2018 ds vuqikyu esa mijksDrkuqlkj fofu;ferhdj.k gsrq /kkjk&33&p esa fufgr fofHkUu izkfo/kkuks ds vuq:i u ik;s tkus ds dkj.k fujLr djrs gq, fuLrkfjr fd;k tkrk gSA**
10. Having heard learned counsel for the parties and having perused the record, it is indeed surprising to note that the State authorities have been unable to give full effect to the final adjudication made in this case. The learned single-Judge of the Court had, in the order dated 02.01.2018, specifically found - in the counter affidavit filed by the Manager of the institution (in Writ Petition No.32506 of 1995) had clearly admitted that the selection of the petitioner was in accordance with law. Further, the learned single-Judge took note of the repeated approvals (to the appointment granted to the petitioner) and the continued resistance on part of the management of the institution to deprive the petitioner of joining at the institution. It is in those facts, the learned single-Judge specifically found the petitioner entitled to be considered for regularisation in service, besides being found entitled to payment of 50% of arrears of salary.
11. That order was not accepted either by the DIOS or the Committee of Management. In the Special Appeals filed by those parties, challenge was raised to the legality of the appointment of the petitioner. In any case, that was directly an issue in those proceedings. The Division Bench did not find any defect in the principal finding recorded by the learned single-Judge to uphold the appointment of the petitioner and the only procedural defect noted by the Division Bench was with respect to the relief of 50% of the arrears of salary granted by the learned single-Judge while dealing with the modification application filed by the petitioner. That was considered to be a breach of procedure. At the same time, the Division Bench did not differ with the learned single-Judge with respect to the entitlement of relief with 50% of arrears of salary. Therefore the Division Bench itself provided that relief in its final decision dated 12.11.2018.
12. That order has attained finality upon dismissal of the Special Leave to Appeal filed by the State-authorities by the Supreme Court, vide its order dated 08.02.2019 (noted above).
13. That being the undisputed adjudication reached in the matter, it never became open to the respondents to seek to question the validity of the appointment of the petitioner. The first four reasons given in the impugned order, as have been extracted above, are nothing but re-agitation of the same issue that had engaged the attention of the Court in Writ Petition No.19063 of 1997. That was decided in favour of the petitioner on 02.01.2018 (by the learned single-Judge), as confirmed by the Division Bench in Special Appeal proceedings in Special Appeal (Defective) Nos.583 of 2018 and 584 of 2018, decided on 12.11.2018.
14. Submission of learned Additional Chief Standing Counsel that in the context of claim of regularisation, it was open to the State-authorities to ascertain the validity of the initial appointment of the petitioner, is therefore wholly untenable. Though, it may be true that no final adjudication had been made either by the learned single-Judge or by the Division Bench of this Court as to the claim for regularisation set up by the petitioner, at the same time, it was very much an issue in those proceedings whether the initial appointment of the petitioner was valid or not. Once that issue was contested between the parties, all pleas affecting for adjudication were open to be raised by the State at that stage. The claim made by the State as was also supported by the Committee of Management was considered both by the learned single-Judge and the Division Bench, to the extent, it may have been raised. Thereupon, a final adjudication arose in favour of the petitioner of his initial appointment being valid and having been validly approved by the DIOS. In fact the adjudication extended to the point where the learned single-Judge specifically found the petitioner to have been wrongfully shown absent, owing to the mala fides on part of the Committee of Management. The Division Bench also recorded a specific finding "the petitioner was wrongfully prevented from discharging his duties in the Institution as his appointment was valid." (emphasis supplied).
15. That finding being the final finding as to fact, it is too late in the day and wholly impermissible in law to allow the respondent-State to set up any doubt or infirmity or illegality or irregularity in the initial appointment of the petitioner on the post of Lecturer. That plea is wholly barred on the principle of res-judicata. There is no room to entertain that argument advanced by the State, any further.
16. In fact, as has been noted above, the further finding of the Division Bench that the petitioner was wrongfully prevented from discharging duties despite his valid appointment, leads to a further inescapable conclusion in law that the petitioner must be deemed to have worked continuously during the period he was wrongfully prevented from discharging his duties.
17. A person who had been validly selected and who was found to have been wrongfully prevented from working, cannot be deprived of the fruits of regularization that hinge on continuous working. To do so would be to allow the respondent to cheat the petitioner of the fair fruits of litigation which he has earned after prolonged litigation got settled upon dismissal of the Special Leave to Appeal filed by the State-respondents.
18. Therefore, the fifth reason cited in the impugned order on the strength of the language of Section 33F(1)(c) of the Act, is misconceived. In view of the above decision of the Division Bench, the petitioner has to be treated to have continuously worked at the institution, though notionally. It is only against that notional working that the relief claimed by the petitioner for payment of full salary was modified to 50% in view of the unlawful obstruction offered by the respondents and the Committee of Management to the working of the petitioner. That relief having been modified, there remains no room to entertain any doubt as to the benefit of regularisation that arose to the petitioner. Had the petitioner been treated to have lawfully restrained from duty, there would have arisen no occasion to consider the relief of grant of 50% of arrears of salary. It was only upon facts found equitable jurisdiction was exercised to grant relief of 50% salary.
19. Thus entitlement was recognized but the relief was modified on equitable consideration. No other or further harsher consequence was open to be reached by the respondents to deny the petitioner the benefit of Section-33F of the Act.
20. In view of the above, the impugned order is wholly unsustainable. It is quashed.
21. In absence of any other doubt shown to exist as to the entitlement of the petitioner to regularisation, a positive direction is issued to the respondent to treat the petitioner to have worked continuously, on notional basis from the date of his initial appointment till the date of his superannuation (upon sessions benefit) i.e. up to 31.03.2020.
22. As to the further arrears of salary due to the petitioner and his retiral dues, the respondents are alone to be blamed. Once the final adjudication had been made, as has been noted above, it was for them to enforce rule of law against any other factor that may have been cited. Since the reasons given in the impugned order are found to be wholly untenable, the petitioner has also become entitled to interest on all delayed payments being arrears of salary and retiral dues.
23. Thus, the writ petition is allowed with the following directions :
(1) Impugned order dated 30.10.2019 is quashed.
(2) Mandamus is issued to the respondents to regularise the petitioner under Section-33F of the Act.
(3) All arrears of salary for the period 02.01.2018 to 31.03.2020 (excluding any salary payment that may have been made for that period) may be computed and paid out within a further period of three months.
(4) All retiral dues be paid out to the petitioner within the same time period.
(5) All payments that may be computed in compliance of this order may carry interest payment @8% from the date of amount becoming due till the date of actual payment.
24. The interest has become necessary to be awarded in the present facts as there is absolutely no legally sustainable ground for the delay caused in payment.
25. Accordingly, the writ petition is allowed.
Order Date :- 1.11.2022 S.Chaurasia