Allahabad High Court
Om Prakash Yadav vs State Of U.P. Through ... on 24 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2024:AHC:94189-DB
RESERVED
Judgement Reserved on 24.4.2024
Judgement Delivered on 24.5.2024
Court No. - 40
Case :- SPECIAL APPEAL No. - 328 of 2024
Appellant :- Om Prakash Yadav
Respondent :- State Of U.P. Through Secretary-Department Of Basic Education And 5 Others
Counsel for Appellant :- Siddharth Khare,Sr. Advocate
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
(Per: Hon'ble Anish Kumar Gupta, J)
1. Heard Sri Ashok Khare, learned Senior Advocate assisted by Sri Siddhartha Khare learned counsel for the petitioner/appellant and Sri Ambrish Shukla, learned Additional Chief Standing Counsel for the State respondents.
2. The instant special appeal has been filed by the appellant/petitioner against the judgement and order dated 26.2.2024 passed by the learned Single Judge in Writ Petition A No. 17364 of 2018 (Om Prakash Yadav Vs. State of U.P. and others) whereby his claim for payment of salary from the date of his termination in the year 2006 till the date of his joining in August, 2017 has been negated by the learned Single Judge in the light of the principle of no work no pay.
3. The brief facts of the case is that Kishan Purva Madhyamik Vidyalaya, Sidhari, District Azamgarh is a recognized Junior High School and governed by the provisions of the U.P. Basic Education Act, 1972. It is claimed by the appellant/petitioner that he was appointed as a Clerk in the said Institution on 1.10.1981 and since then he was continuously working in the Institution. His appointment was approved by the Basic Shiksha Adhikari, Azamgarh vide order dated 28.8.1985. Subsequently, the said Institution was brought on the grant in aid list w.e.f. 1.12.2006.
4. It is claimed that since the Institution was being taken on the grant in aid list, the Committee of Management did not want the petitioner to work in the Institution and has dispensed with his services on 1.10.2006 on the ground that he was absent from the Institution from 8.9.1986 till the date of dispensation of his services. Being aggrieved by the said order the petitioner moved various representations which do not find any favour from any of the authorities.
5. Thereafter, the petitioner filed a writ petition no. 14340 of 2007 which was disposed of vide order dated 16.3.2007 with a direction to the Director of Education (Basic) to consider the representation of the petitioner. In pursuance of the said order of this Court after due consideration of the representation of the petitioner, the Director of Education (Basic) rejected his representation vide order dated 13.3.2008 having found that the petitioner was absent from service from the year 1986 till the Committee of Management terminated his services in the year 2006 for about 20 years continuously.
6. Aggrieved by the aforesaid order dated 13.3.2008, the petitioner filed another Writ A No. 32760 of 2008 (Om Prakash Yadav Vs. State of U.P. and others) which was allowed vide order dated 16.1.2013 relying upon the provisions of Rule 21 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditiions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984. While allowing the writ petition the learned Single Judge has held that since the prior approval of Basic Shiksha Adhikari was mandatory, as per the Rule 21 of the Rules, 1984 and no such approval was granted, therefore, the petitioner's termination was not in accordance with law. The relevant portion of the judgement dated 16.1.2013 is being quoted as under:
"It is not disputed that the petitioner was appointed in the said institution on 1.10.1981 and his appointment has been approved by the Basic Education Officer by order dated 28.8.1985. The services of the employees of Junior High School are governed by U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984. Rule 21 of the 1984 Rule reads as under;
"21. Termination of service.- No clerk or Group 'D' employee of a recognized school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Eduction Officer:
Provided that, in the case of schools established and administered by minority referred to in clause (i) of the Article 30 of the Constitution, such an order shall not require the approval of District Basic Education Officer but shall be reported to him."
It is required that prior approval of the Basic Education Officer is necessary before terminating the services of an employee. The Director of Education in the impugned order himself recorded a finding that resolution of the Committee of Management for terminating the services of the petitioner was sent to the Basic Education Officer for his approval and the said matter is still pending before him.
It is demonstrably established that there is no approval of the Basic Education Officer till date. On the date when the impugned order was passed, the matter was pending.
A simple look at the gamut of aforesaid rule instantly brings out that the rule starts from the negative word 'No', as such the said provision is mandatory.
Admittedly, as mentioned in the order of Director of Education and also it has been admitted by the Committee of Management as well as learned Standing Counsel that the Basic Education Officer has not approved the termination of the petitioner to date. Thus, the services of the petitioner cannot be said to be terminated in absence of prior approval of Basic Education Officer.
For the aforesaid reasons, the order passed by the Director of Education is liable to be set aside and it is accordingly set aside. The petitioner is entitled for his salary. It is made clear that if the resolution of the Committee of Management is pending before the Basic Education Officer for his approval, he will pass an appropriate order after affording opportunity of hearing to the petitioner in accordance with law.
The petitioner shall be deemed to be continued in service. His arrears of salary shall depend on the order passed by the Basic Education Officer."
7. Since the aforesaid order of termination of the services of the petitioner was set aside and with regard to the approval of the termination order and payment of arrears of salary, the matter was remitted to the Basic Shiksha Adhikari. On the representation made by the petitioner in the light of the aforesaid judgement dated 16.1.2013, the Basic Shiksha Adhikari considered the claim of the petitioner with regard to payment of arrears of salary and having found that the petitioner was absent from the Institution from 8.9.1986 till the date of his termination without any application or without any reason and no explanation for the same was provided by the petitioner, therefore, the claim of the petitioner for arrears of salary has been denied vide order dated 7.11.2013 relying upon the principle of no work no pay. Being aggrieved by the aforesaid order dated 7.11.2013 passed by the Basic Shiksha Adhikari, the petitioner filed another Writ Petition A No. 6830 of 2014 (Om Prakash Yadav Vs. State of U.P. and others) which was allowed vide judgement and order dated 5.2.2014 and the matter was remitted back to the Basic Shiksha Adhikari, Azamgarh to take a fresh decision in the matter considering the various objections raised by the petitioner in the writ petition. Against the aforesaid order dated 5.2.2014, the Committee of Management of the said Institution filed a Special Appeal No. 245 of 2014. During the pendency of the said special appeal the Basic Shiksha Adhikari has passed an order on 30.8.2014 restoring the services of the petitioner. Subsequently, the said special appeal has been dismissed on 19.2.2016 in the light of the order dated 30.8.2014 passed by the Basic Shiksha Adhikari. The relevant portion of the order dated 30.8.2014 is being quoted as under:
"निष्कर्ष सुनवाई के दौरान प्राप्त आख्या एवं अभिलेखों तथा पत्रावली में उपलब्ध अभिलेखों के अवलोकन के उपरान्त पाया गया कि, किसान पूर्व माध्यमिक विद्यालय सिधारी, आजमगढ़ में दिनांक 01-10-1931 को याची श्री ओम प्रकाश यादव लिपिक की नियुक्ति हुई थी। इस प्रकार अशासकीय सहायता प्राप्त जूनियर हाई स्कूल में लिपिक एवं चतुर्थ श्रेणी कर्मचारियों की भर्ती एवं सेवा शर्ते नियमावली 1984 के पूर्व से कार्यरत होने के कारण उनका औपचारिक अनुमोदन तत्कालीन जिला बेसिक शिक्षा अधिकारी, आजमगढ़ के पत्र दिनांक 29-8-1985 द्वारा किया गया है। यद्यपि कि श्री ओमप्रकाश यादव की विद्यालय में उपस्थिति भ्रमपूर्ण है। प्रबन्धक द्वारा लगातार अनुपस्थित दर्शाया जा रहा है, जबकि ओम प्रकाश यादव द्वारा अपने को उपस्थित बताया जा रहा है। प्रबन्धक द्वारा उपलब्ध कराये गई आख्या के अनुसार श्री ओम प्रकाश यादव को विद्यालय में उपस्थिति होने के लिए भेजे गये अधिकांश पत्र वाहक के माध्यम से भेजने का उल्लेख किया गया है। उनके द्वारा पंजीकृत पत्र प्रथमबार दिनांक 19-10-2006 को भेजा गया है। दिनांक 08-09-1986 से लेकर दिनांक 19-10-2006 के मध्य एक भी पंजीकृत पत्र प्रेषित न कर मात्र वाहक के माध्यम से उपस्थित होने के लिए सूचित करना औचित्यपूर्ण नहीं है। वर्ष 2006 में विद्यालय अनुदानित होने के समय पंजीकृत पत्र प्रेषित किया गया है तथा विवाद उत्पन्न हुआ है। श्री ओम प्रकाश यादव लिपिक की सेवा समाप्ति की कार्यवाही भी लिपिक एवं चतुर्थ श्रेणी कर्मचारियों की भर्ती एवं सेवा शर्ते नियमावली 1984 के प्राविधानों के अनुसार पुष्टित नहीं हो रही है। अतः ऐसी स्थिति में श्री ओम प्रकाश यादव लिपिक की नियमित सेवायें मान्य कर, सहायक शिक्षा निदेशक (बेसिक) आजमगढ़ मण्डल आजमगढ़ के माध्यम से वेतन भुगतान की अनुमन्यता प्राप्त करते हुए वेतन भुगतान किया जाना उचित होगा।
निर्णय अतः मा० उच्च न्यायालय इलाहाबाद में योजित याचिका संख्या- 6830/2014 श्री ओम प्रकाश यादव बनाम उत्तर प्रदेश सरकार एवं अन्य में पारित आदेश दिनांक 05-02-2014 के क्रम में श्री ओम प्रकाश यादव की सेवा समाप्ति लिपिक एवं चतुर्थ श्रेणी कर्मचारियों की भर्ती एवं सेवा शर्ते नियमावली 1984 के प्राविधानों के अनुसार नहीं होने के कारण, उनकी सेवा मान्य करते हुए याची का प्रत्यावेदन निस्तारित किया जाता है।"
8. Against the order dated 30.8.2014 of the Basic Shiksha Adhikari the Committee of Management filed a Writ Petition A No. 61625 of 2014 (Committee of Management, Kishan Purva Madhyamik Vidyalaya, Azamgarh Vs. State of U.P. and others), which was dismissed for want of prosecution on 18.5.2017. In the meantime the petitioner was allowed to join his services w.e.f. 2.7.2017 and from the date of his joining he was being paid regular salary in accordance with law.
9. The instant writ petition was filed by the appellant/petitioner claiming the arrears of salary from the date of his termination i.e. 1.12.2006 till the joining of his services i.e. 2.7.2017, which has been dismissed vide impugned judgement and order dated 26.2.2024. Thus the present special appeal has been filed by the appellant/petitioner assailing the judgement and order dated 26.2.2024 passed by the learned Single Judge.
10.. Learned senior counsel for the appellant/petitioner submits that the termination order of the appellant/petitioner dated 1.12.2006 was set aside vide judgement and order dated 16.1.2013 with a clear mandate that the appellant/petitioner will be entitled for his salary and the appellant/petitioner shall be deemed to be continued in service. Therefore, he is entitled for his salary from the date of his termination from services till the date of his joining as he was not allowed to work at the behest of the Committee of Management under the garb of termination order dated 1.12.2006 which has never been approved by the District Basic Shiksha Adhikari rather his services have been restored with continuity in service vide order dated 30.8.2014 by the Basic Shiksha Adhikari. Therefore, he is entitled for salary from the date of his termination till the date of his joining of his services in the year 2017.
11. Learned Senior Counsel for the appellant/petitioner relied upon the judgement of a coordinate Bench of this Court passed in Special Appeal (D) No. 704 of 2023 (State of U.P. Vs. Rajesh Kumar Yadav decided on 5.10.2023 whereby in similar situation the learned Single Judge has awarded the salary to the petitioner of that case and the appeal against the same was dismissed.
12. On the other hand, learned Addl. Chief Standing Counsel submittes that even prior to the termination of the services of the petitioner he was continuously absent from the Institution from 8.9.1986 till 1.10.2006 i.e. the date of his termination of his service despite repeated reminders issued by the Committee of Management. For his absence he has never submitted any explanation to the Committee of Management. Learned Addl. Chief Standing Counsel further relied upon the statement on behalf of the Management as has been recorded in the order dated 30.8.2014 wherein it has been categorically stated that the petitioner was absent from 8.9.1986 without any application. Due to his absence on 3.10.1986, the Committee of Management had issued a letter asking the petitioner to submit his explanation for his absence or any application for leave. However, the petitioner failed to comply with the letter issued by the Management. Thereafter time and again such letters were issued by the Management on 4.10.1986, 16.8.1987, 27.1.1988, 4.4.1990, 17.9.1992, 7.1.1995, 3.7.1988, 13.12.2001, 24.2.2003 and 13.32006. However, the appellant/petitioner denied to accept those letters and absence of the appellant/petitioner was also verified by the Dy. District Inspector of Schools on 10.10.1990 and the attendance register was also verified by the then Assistant Basic Shiksha Adhikari on 5.4.1997 and also on 22.9.1998 wherein the absence of the petitioner was duly verified and as per the relevant rules and the G.Os. if any government servant is absent without any intimation or without any application for leave, his services were to be terminated automatically.
13. Perusal of the record shows that vide judgement and order dated 16.1.2013 the termination of the appellant/petitioner was set aside only on the technical ground of non approval of the same by the District Basic Shiksha Adhikari, as required in Rule 21 of the Rules, 1984 but the same do not take away the basis of the termination of the petitioner on the ground of continuous absence for about 20 years. The claim of the petitioner that the Management has changed the attendance register for 20 years cannot be sustained in the light of the time to time approval of his absence on the attendance register by the Dy. Inspector of Schools and the concerned Assistant Basic Shiksha Adhikari and even by the judgement and order dated 16.1.2013 it was left open for the District Basic Shiksha Adhikari to grant approval to his termination and decide with regard to payment of arrears of salary which was duly declined by the Basic Shiksha Adhikari on 7.11.2013 and even by the order dated 30.8.2014 though the petitioner was restored in service with continuity in services, however, no orders have been passed with regard to payment of arrears of his salary for his continuous absence from the service.
14. So far as the reliance placed upon by the learned counsel for the appellant/petitioner on the judgement and order dated 5.10.2023 passed in Special Appeal (D) No. 704 of 2023 (State of U.P. Vs. Rajesh Kumar Yadav) is concerned, that case is quite distinguishable as in that case the termination order passed by the authority was revoked by the Department itself having found that the qualification of the High School and ITI were the alternative qualifications and the ground for termination of the petitioner of that case was no more surviving. Thus it is clear that since in that case the ground for termination of services of that person did not survive and the same was revoked by the Department itself, therefore the petitioner of that case was reinstated in service with arrears of salary. However, in the instant case the ground of termination from service still survives which has been duly verified by the officers concerned from time to time. However, the termination of the appellant/petitioner was set aside only on the technical ground of non approval of the same in accordance with Rule 21 of the Rules, 1984. Thus the judgement and order of the coordinate Bench relied upon by the learned senior counsel for the appellant/petitioner is distinguishable and is of no help to the appellant/petitioner in the facts and circumstances of the present case.
15. Having considered the facts and circumstances of the instant case as well as the submissions made by learned counsel for the parties, we find that so far as the question of absence of the appellant/petitioner from the Institution w.e.f. 8.9.1986 till 2006 is concerned, the appellant/petitioner was infact found to be absent from service as is evident from the attendance register, which has also been verified by the Dy. Inspector of Schools and Assistant Basic Shiksha Adhikari from time to time, therefore, though the termination order has been set aside on a technical ground, the learned Single Judge has properly appreciated the facts and circumstances of the instant case and has rightly passed the order declining the payment of arrears of salary from the year 2006 till July, 2017, by applying the principle of no work no pay. Therefore, we do not find any good reason to interfere with the order passed by the learned Single Judge.
13. For the aforesaid reasons, the instant special appeal lacks merit and is accordingly dismissed.
Order Dated: 24th May, 2024.
O.K.
(Anish Kumar Gupta, J) (M.C. Tripathi, J)