Allahabad High Court
Dr. Dinesh Kumar Singh Chauhan And ... vs State Of U.P.Throu.Secy.Deptt.Of ... on 17 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 1110
Author: Alok Mathur
Bench: Pankaj Kumar Jaiswal, Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Judgment Court No. - 1 Case :- SPECIAL APPEAL DEFECTIVE No. - 623 of 2018 Appellant :- Dr. Dinesh Kumar Singh Chauhan And Another Respondent :- State Of U.P.Throu.Secy.Deptt.Of Secondary Edu.Lko.& Ors. Counsel for Appellant :- Manish Kumar Counsel for Respondent :- C.S.C. Hon'ble Pankaj Kumar Jaiswal,J.
Hon'ble Alok Mathur,J.
(Delivered by Hon'ble Alok Mathur, J.)
1. Heard Sri Manish Kumar, learned Senior Advocate assisted by Sri Atul Dwivedi, learned counsel for the appellants as well as learned Standing Counsel for respondent nos. 1 and 2 and Sri Manish Mishra, learned counsel for respondent no. 3.
2. The instant Special Appeal has been preferred by the appellants being aggrieved by the judgement and order dated 18/08/2018 passed by the learned Single Judge in Writ Petition No.14139 (S/S) of 2018, whereby the writ petition filed by the appellants / petitioners has been dismissed.
3. The facts in brief are that the appellant no.1 was initially appointed on 01/10/1983 as PT Teacher in the Intermediate Wing governed by the U.P. Board and was confirmed on 28/05/1988. The appellant number 1 was promoted as Lecturer (Physical Education) on 27/04/1999.
4. Similarly the appellant no.2 was initially appointed on 11/07/1991 as Science / Maths Teacher in the Intermediate Wing and his services were confirmed on 14/08/1993.
5. Ever since their appointment, the appellants have continued teaching in the Intermediate Wing of Colvin Taluqedars Inter College, Lucknow. During the service period, a resolution was passed by the Committee of Management, Colvin School Society deciding to disaffiliate the College from the U.P. Board Wing from the academic session 2001-2002 and further vide resolution dated 13/06/2002, the Committee of Management resolved not to admit students from Classes VI to VIII in the U.P. Board Wing.
6. The Managing Committee of the Society in its meeting held on 28/06/2003 decided to abolish the post under the U.P. Board Wing and directed the teaching and non-teaching staff of the U.P. Board Wing to continue in the ISC Wing of the College. Some of the teachers apprehending disaffiliation of the U.P. Board Wing filed Writ Petition No.2049 (M/S) of 2003 praying that their salary be paid from the U.P. Board Wing as per the Payment of Salaries Act. These teachers did not join the ISC Wing of the College.
7. As regards the appellants, a letter was issued on 30/07/2003, relieving the appellants from the duties of the College in the U.P. Board Wing and were instructed to continue their teaching work in the ISC Wing of the College. The appellants submitted the representation on 09/08/2003 informing about the litigations pending before the Hon'ble High Court and requested that if at some point in the future, the U.P. Board Wing is revived, they may be taken back on their posts with all due rights and privileges. After the submission of the representation, the appellants to discharge their duties in the ISC Wing of the College.
8. During this period, Writ Petition No.2049 (M/S) of 2003 filed by the teachers of the U.P. Board Wing who had not join the ISC Wing came to be decided vide judgement dated 17/11/2004, and this Hon'ble Court in paragraph 63 of the judgement, quashed the orders dated 30/07/2003 by which the services of the petitioners of the said writ petition were dispensed with, with a direction to the Management of the College to ensure payment of salary as if the orders were not in existence. Other directions were also given by this Court for continuance of the U.P. Board Wing.
9. It has been submitted that the services of the appellants were never dispensed with or terminated at any point of time rather they continued to discharge their services earlier in the U.P. Board Wing, thereafter in the ISC Wing of the College.
10. Since the issue had been decided by this Court, the appellants alongwith other teachers submitted a representation before the District Inspector of Schools, Lucknow (hereinafter referred to as "the DIOS'') whereupon, the order dated 16/04/2005 was passed by the DIOS directing the Manager of the College to initiate proceedings for joining of the appellants in the U.P. Board Wing.
11. In the meantime, challenging the judgement dated 17/11/2004, a Civil Appeal No.5244 of 2008 was preferred by the Colvin School Society in which initially an interim order was passed by the Hon'ble Supreme Court on 17/12/2004 directing to maintain status quo in regard to the services of the teachers until further orders. In terms of the directions contained in paragraph 63 of the judgement subject to the condition that the teachers would teach the courses as directed by the Management of the College.
12. After the interim order passed by the Hon'ble Supreme Court, the petitioners of Writ Petition No.2049 (M/S) of 2003 also continue teaching in the ISC Wing like the present appellants. The Civil Appeal was finally decided by this Hon'ble Apex Court vide its judgement dated 11/10/2011 and the Hon'ble Supreme Court in para 30 of the judgement modified the directions of the Hon'ble High Court and provided that-
"The direction contained in para 63(1) is confined to 10 teachers presently remaining with the appellants to the appellants-Society shall at the earliest settled in accordance with law, is not settled so far, all the dues of other teachers, who have left the institution, in the meanwhile."
13. It has been contended that the appellants had not left the College rather were continuously discharging their duties.
14. During the course of proceedings before the Hon'ble Apex Court, an affidavit was filed on behalf of the Management of the College showing its willingness to continue the U.P. Board Wing and after the judgement of this Hon'ble Court, the resolution was passed on 07/04/2012 and unanimously resolved in Agenda No.5(f) that the teachers be also appointed as teachers in the U.P. Board Wing with effect from 01/07/2012. In the said resolution, the name of the appellants is mentioned at serial nos.1 and 3 respectively. Not only this, the names of the teachers in whose favour the judgement was passed by the Apex Court on 10/10/2011 were also included.
15. Pursuant to the resolution of the Managing Committee, an office order was issued on 30/06/2012 (for those teachers who were party before the Apex Court) relieving the staff to join the College affiliated to the U.P. Board Wing with immediate effect. As regards the appellants, an office order was issued on the same date i.e. 30/06/2012 directing them to join the U.P. Board Wing of the College with immediate effect. In the said order, the appellants are placed at serial no.2 and 3.
16. On 30/06/2012, the present appellants alongwith other teachers were relieved and joined the U.P. Board Wing of the College and started discharging their duties. In the meantime, the DIOS, Lucknow inspected the institution on 05/07/2013 and attested the services of the appellants in the U.P. Board Wing. During this period, a Writ Petition No.1113 (S/S) of 2004 was decided on 10/01/2014; Writ Petition No.2502 (S/S) of 2004 was decided on 17/04/2015, Writ Petition No.4979 (S/S) of 2004 was decided on 22/04/2015 wherein, the benefit of the judgement passed by the Hon'ble High Court on 17/11/2004 and the judgement of the Hon'ble Apex Court dated 11/10/2011 was extended to the teaching as well as non-teaching staff of the College.
17. After the judgement of the Hon'ble Apex Court and various judgements of this Court, giving the same benefit to other teachers, one Dr. Pramod Kumar, who had neither filed any writ petition nor had continued in services of the College made a representation before the State Government and the State Government vide its order dated 03/03/2014, granted him the benefit of the judgement of the Hon'ble Apex Court dated 11/10/2011 and giving all benefits including salary and consequential service benefits from the State aid.
18. The appellants also made representation before the State Government seeking benefit of the judgement dated 11/10/2011, whereupon the representation dated 15/03/2015, before the State Government whereupon, the Principal Secretary, Secondary Education was directed to enquire the matter as to whether the present appellants also be given the benefit on the basis of parity. Principal secretary, Secondary Education called for the report from the Department and in compliance thereof, the DIOS, Lucknow submitted the report dated 07/09/2015, mentioning therein that though the judgement dated 11/10/2011 had been passed in respect of 10 teachers only, but the benefit may also be extended to the present appellants after adjusting the salary and benefits given to the appellants in the ISC Wing. The DIOS has also specifically pointed out that Dr. Pramod Kumar Gangwar had not discharged the duties in the ISC Wing and has been given the benefit whereas the appellants had discharged their services in the ISC Wing of the College. Thereafter, the Director, Secondary Education forwarded the report to the State Government on 05/11/2015, with a recommendation that the present appellants can also be given the benefit of the judgement of the Hon'ble Apex Court after adjusting the salary and benefits which had been given to them in the ISC Wing.
19. The matter remained pending before the State Government, in the meantime, due to the vacancy on the post of Principal, the appellant no.1 was appointed as Principal of the College and his papers were sent before the DIOS, Lucknow for attestation of his signatures. However, the DIOS ignoring his earlier report dated 07/09/2015 issued the letter on 18/04/2016, refusing to attest the signatures of the appellant no.1 on the pretext that the termination of services made on 30/07/2003, was in existence. The DIOS ignored that after 30/07/2003, the appellants had been continuing in the ISC Wing of the college and the Dias itself has written the letter dated 16/04/2005 for continuing the appellants in the U.P. Board Wing. Not only this, the DIOS has also recommended for extension of benefit to the appellants vide his report dated 07/09/2015.
20. Against the letter dated 18/04/2016 issued by the DIOS, Lucknow, the appellant no.1 preferred a representation before the DIOS on 02/05/2016 and the DIOS, Lucknow realising his mistake wrote the letter on 05/05/2016 to the Director, Secondary Education seeking his guidance in the matter. The appellant no.1 also submitted the representation before the Director, Secondary Education on 09/11/2016 for taking decision. Although the matter remained pending before the State Government.
21. On the report submitted by the DIOS on 07/09/2016 and by the Director on 05/11/2015, the decision was yet to be taken by the State Government and since the appellants were not being paid salary from the State Grant, the appellants filed Writ Petition No.14139 (S/S) of 2018 praying for a direction that the present appellants be paid salary from the grant-in-aid list of the State Government for the College and also sought benefit of the judgement passed by the Hon'ble Apex Court dated 11/10/2011 and the judgements dated 10/01/2014, 17/04/2015 and 22/04/2015 passed by this Court in other writ petitions.
22. It has also been submitted that except the present appellants and Dr. Rakeshwar Singh, all other teaching and non-teaching staff had been given the benefit of the judgement passed by the Hon'ble Apex Court and got their salary and service benefits from the State aid.
23. During the pendency of the writ petition, an application for impleadment was filed on behalf of 10 teachers who had filed the Writ Petition in whose favour of the judgement passed by the Hon'ble Apex Court on 11/10/2011 through their learned counsel Shri J.C. Verma. This Hon'ble Court considered the locus of the applicant and rejected the application for impleadment with permission to Shri J.C. Verma to assist the Court.
24. Thereafter, the writ petition filed by the present appellants has been dismissed vide judgement and order dated 18/08/2018 which has been challenged in the present Special Appeal mainly on the ground that -
(i). The present appellants had joined the ISC Wing of Colvin Taluqedar's Inter College while the judgement dated 11/10/2011 was granted to the teachers who had never joined the ISC Wing of the college and filed a writ petition before this Hon'ble Court;
(ii). The present appellants have not challenged their termination order dated 30/07/2003 or the order dated 18/04/2016 passed by the D.I.O.S. at the relevant point of time and the writ petition was belated;
(iii). The parity cannot be claimed for wrong and hence benefits granted to Dr. Pramod Kumar Gangwar cannot be extended to the present appellants.
25. It has been vehemently urged that the reason assigned by the Hon'ble Single Judge for dismissing the writ petition is contrary to the records as far as the first grant is concerned, all other teaching and non-teaching staff who had continued in the ISC Wing has been extended the benefit of the judgements passed by this Court and the Hon'ble Apex Court dated 11/10/2011 and getting payment from the State aid. Even the benefit was extended to the teachers who have not worked either in the ISC Wing or in the U.P. Board Wing have also been extended the same benefits and the present appellants are at much better footing as the services of the appellants were continuous.
26. With regard to the second ground, the services of the appellants was neither terminated nor dispensed with despite order dated 30/07/2003 and they continued in the services in the ISC Wing even the DIOS had written a letter in favour of the appellants on 16/04/2005 for continuing the appellants in the U.P. Board Wing and hence, there was no occasion for the present appellants to raise any challenge against the alleged termination. As regards the order dated 18/04/2016, the D.I.O.S. himself has realised his mistake and had written a letter on 05/05/2016 seeking necessary guidance from the Director, Secondary Education and hence the said order dated 18/04/2016 was also not final and did not warrant any challenge by the present appellants at the at that point of time.
27. The writ petition of the appellants cannot be said to be belated for the reason that even the reports have been submitted by the D.I.O.S. on 07/09/2015 and the Director, Secondary Education on 05/11/2015 recommending grant of same benefit to the present appellants and the matter was pending before the State Government and no final decision had been taken. As non-payment of due salary is a recurring cause of action, the petition filed by the present appellants for payment of their salary cannot be held to be belated.
28. With regards the third main ground that the present appellants were claiming parity for wrong is also contrary to the records for the reason that it is undisputed that the benefit of the judgement of this Hon'ble Apex Court dated 11/10/2011 has been extended to Dr. Pramod Kumar Gangwar on 03/08/2014, who had not filed any writ petition. It was not the case of any of the parties that the order passed by the State Government was illegal in any manner while granting benefit to Dr. Gangwar and hence when all the teaching and non-teaching staff of the college have been extended the benefit of the judgement of the Hon'ble Single Judge that the observation of the Hon'ble Single Judge that the present appellants are claiming parity for wrong is contrary to the records and the arguments raised by the parties. In respect of Dr. Pramod Kumar Gangwar, the specific ground has been taken in the Ground ''A' of the present Special Appeal.
29. During the course of hearing of the present Special Appeal, the learned counsel for the intervenors Shri G.C. Verma argued vehemently but failed to reply on the issue of locus reason being the main contention of Shri G.C. Verma, Advocate is that if the present Special Appeal is allowed, the appellant no.1 will continue as Principal of the college and the intervenors shall be adversely affected. The said contention is also wholly misconceived for the reason that the applicants / intervenors are Assistant Teachers in the LT Grade which is evident from and not eligible or entitled or qualified for promotion as Principal in the Intermediate Wing and hence the intervenor / applicant cannot be held to be adversely affected by the claim of the present appellants in any manner. Moreover, the issue sought to be raised by the Counsel Shri G.C. Verma on behalf of the intervenors neither the subject matter of the WEP nor the subject matter in the present Special Appeal. It is also pertinent to point out here that Shri Rakeshwar Singh had also preferred Writ Petition No.1470 (S/S) of 2005 seeking the benefit of the judgement of this Hon'ble High Court and Hon'ble Apex Court which has been decided by this Hon'ble Court vide judgement dated 22/10/2019. This Hon'ble Court in its judgement dated 22/10/2019 has considered the entire aspect of the matter as well as the impact of the resolution dated 07/04/2012 passed by the Committee of Management and found that there was no occasion to deny benefit of the judgement of the Hon'ble Apex Court dated 11/10/2011.
30. This Court in its judgement dated 05/04/2019 passed in Special Appeal No.205 of 2015 has provided that the benefit of the judgement dated 11/10/2011 passed by the Hon'ble Supreme Court be extended to the non-teaching staff and payment has to be made by the State Government.
31. Considering the aforesaid facts and from the perusal of the impugned judgment passed by the learned Single Judge, it is clear that one of the grounds for dismissing the writ petition preferred by the petitioner was with regard to granting of parity with the order passed by the State Government with regard to Dr. Pramod Kumar Gangwar who by means of order dated 03.03.2014, has also provided other benefits including salary. The learned Single Judge has denied grant of parity by stating that "parity cannot be claimed for wrong" and also that "illegality cannot be permitted to be perpetrated by passing illegal order."
32. In the impugned order passed by learned Single Judge there is no discussion with regard to the validity of the order dated 03.03.2014, passed by the State Government with regard to Dr. Pramod Kumar Gangwar. A Court may be right in not following an order which is on the face of it contrary to the well-established principles of law, contrary to the statutory provisions etc., but in case it is so, it has to be declared as such and only then can 'parity' be denied, failing which as per the mandate of Article 14 of the Constitution of India, the petitioners claim for being similarly treated, cannot be rejected. In absence of any arguments raised by the respondents, nor any discussion or mention made in the impugned order with regard to the alleged illegality in the order passed by the State Government in favour of Dr. Pramod Kumar Gangwar, the said order cannot by any stretch of consideration, be held to be illegal and consequently the benefit of the same cannot be denied to the petitioners who are similarly placed.
33. The Hon'ble Apex Court after due consideration has also granted benefits to similarly situated teachers and therefore, on this account also the petitioners are entitled to the similar benefit.
34. On due consideration of the above, we are of the considered view that the order of the learned Single Judge cannot be sustained as the benefit of 'parity' to the petitioners-appellants has been denied, without recording any reasons as to why the order passed by the State Government in favour of Sri P.K. Gangwar would become illegal and also that similar benefit which has been granted to the similarly placed teachers by the Apex Court, cannot be given to the petitioners-appellants.
35. In the light of discussion made above, the impugned order dated 18.08.2018, passed by the learned Single Judge, in Writ Petition No. 14139 (S/S) of 2018, is set aside and the respondents are directed to take the petitioners services in grant-in-aid and pay salary from the grant-in-aid provided by the State Government to the College.
36. The special appeal stands allowed.
Order Date :- 17.03.2020
A. Verma
(Alok Mathur, J.) (Pankaj Kumar Jaiswal, J.)