Allahabad High Court
Panch Dev Yadav And 50 Others vs State Of U.P. And Another on 2 August, 2022
Author: Vivek Varma
Bench: Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 35 Case :- WRIT - A No. - 11112 of 2022 Petitioner :- Panch Dev Yadav And 50 Others Respondent :- State of U.P. and Another Counsel for Petitioner :- Sanjay Kumar Singh Kushwaha,Kailash Singh Kushwaha Counsel for Respondent :- C.S.C. Hon'ble Vivek Varma,J.
Heard learned counsel for petitioners and learned State counsel appearing for the respondents.
The instant writ petition has been filed seeking a direction to the respondent no.1 to absorb the petitioners on appropriate regular posts with pay-scale as per their eligibility and ability in any of the Government Departments in view of the service rendered by them as Supervisor/ Instructor in the department concerned and further to consider their claim in the light of the directions issued by this Court earlier in Writ-A No. 38477 of 2016 and Writ-A No. 3068 of 2022.
Learned counsel for the petitioners has submitted that initially the petitioners were appointed on a fixed honorarium from the year 1989 to 1994 under the scheme of Non-Formal Education to cooperation of the Central Government and the State Government. The aforesaid scheme was merged in 2001 in the Central Government Scheme of Sarv Shiksha Abhiyan and the earlier Non-Formal Education Scheme was closed with effect from 01.04.2001 as per order dated 24.03.2001. It is submitted that subsequently various writ petitions were filed all over the country with the Patna High Court passing directions for similarly situated persons. The aforesaid direction of the Patna High Court vide judgment and order dated 11.08.2015 was challenged before Hon'ble the Supreme Court in Civil Appeal No.3751 of 2021 and the same was dismissed.
Learned counsel for the petitioners submits that the petitioners have a right to claim parity with the aforesaid persons in terms of Articles 14, 16 and 31 of the Constitution of India.
Learned counsel for the petitioners has also placed reliance upon the judgment and order dated 05.07.2022 passed by this Court in Writ-A No. 9543 of 2022 (Virendra Gupta and others v. State of U.P. and another) in the matter of identically placed persons.
Learned State Counsel on the other hand refuting the submissions advanced by learned counsel for petitioners submits that although the petitioners are similarly situated as the persons who had been granted benefit earlier by this Court but has sought to draw a distinction with the submission that the petitioners have approached this Court highly belatedly and are in fact under the category of fence-sitters and as such do not require any indulgence of this Court.
Upon consideration of submissions advanced by learned counsel for parties and perusal of the material available on record, it is undisputed that persons placed similarly as the petitioners had earlier filed Writ-A No. 38477 of 2016 (Balendra Prasad Rai and 211 others v. State of U.P. and others), which was allowed vide judgment and order dated 21.04.2022. The said judgment reads as follows:
"Heard Sri K. S. Kushwaha, learned counsel for the petitioners and learned Standing Counsel for the State-respondents.
This petition has been filed praying for directing the respondents to absorb the petitioners on appropriate regular post with pay-scale as per their eligibility and ability in any of the department in view of their long service rendered as Supervisor/Instructor in Non-Formal Education Project.
The brief facts of the petition are that petitioners were appointed on different dates fixed honorarium from the year 1989 to 2001 under the scheme of Non Formal Education of the Central Government, which was merged in the year 2001 in the scheme of the Central Government known as (Sarv Shiksha Abhiyan). The earlier scheme of Non Formal Education was closed w.e.f. 01.04.2001 as per order dated 24.03.2001. The Director of Formal Education intimated the Director of Secondary Education by his letter dated 28.03.2001 that State Government has decided to absorb the Project Officers / Supervisors appointed on adhoc basis on non-cadre post by down grading the pay-scale on cadre posts keeping in view their long service.
The grievance of the petitioners is that some Instructors / Supervisors have already been absorbed in different departments by the Government but the petitioners who were also Supervisors / Instructors have not been absorbed despite directions of this court to consider their grievances passed in Writ-A No.34185 of 2010 filed by the petitioners.
Petitioners claim that they have been discriminated and denied absorption while similarly situated Supervisors / Instructions have been absorbed in pursuance of pick and choose policy.
Counter affidavit has been filed by the learned Standing Counsel on behalf of respondent nos.1 and 2, Principal Secretary Basic Education U.P. Lucknow and Director of Education (Basic) U.P. Lucknow, wherein it has been stated that some Supervisors / Instructors have been given joining as 'Shiksha Mitra' as per Government Order 10.10.2005 and 24.04.2006 but some of them have been deprived of adjustment. It has been submitted that the appointment claimed by the petitioners is a policy matter to be decided at the Government level and the claim of the petitioners cannot be considered by the answering respondents.
Learned counsel for the petitioners has relied upon the judgement of Patna High Court dated 11.08.2015 whereby similarly placed employees were held entitled to be absorbed and directed accordingly.
Learned counsel for the petitioners has also placed before this Court the order of the Apex Court passed in Civil Appeal No.3751 of 2021 preferred by the State of Bihar against the order of the Patna High Court whereby the order dated 11.08.2015 of the High Court passing certain directions for rehabilitating the Supervisors working in the scheme of Non Formal Education was challenged. The Supreme Court dismissed the above Civil Appeal of the State of Bihar. Subsequently, a modification application was filed before the Hon'ble Supreme Court praying that the aforesaid relief granted by Patna High Court may be confined only to the petitioners and not to those who did not approach the Patna High Court. The Apex Court did not modified the order but directed the parties to approach the Patna High Court with the rider that matter which have become final shall not be reopened.
Learned Standing Counsel has submitted that the decision taken by the State of Bihar is not binding on the State and the judgements in this regard have no application to the present case.
After hearing rival submissions this Court finds that the State has not adopted any uniform policy in absorption of the Supervisors / Instructors employed in Non Formal Education Scheme. While some of them have been absorbed, the others, like petitioners, have been denied absorption without any rational basis. There is clear violation of Article 14 of the Constitution of India in this case and the right of the petitioners guaranteed under Article 21 of the Constitution of India stands violated.
In the counter affidavit filed by respondents they have not been able to point out any criteria for absorption some Instructors / Supervisors and non absorption of the similarly situated employees.
The sovereign power of the State cannot be permitted to be exercised by public servants arbitrarily or the State Government in discriminatory manner.
Writ of mandamus is issued to respondent no.1, the State of U.P. to formulate a policy for absorption of the petitioners within six months and absorb them in any department of the State Government and pay them their regular salary as per their eligibility and ability keeping in view their long service and more than 20 years period lost thereafter in pursuing litigation before this Court.
The writ petition stands allowed."
The said judgment was followed in Writ-A No. 3068 of 2022, Ram Pyare Lal & others versus State of U.P. & Ors., vide order dated 25.05.2022 in the following manner:-
"Be that as it may, the said judgment contained direction to the State of U.P. to formulate a policy for absorption of the petitioners therein who were working in the non-formal education scheme as Instructors within six months and absorb them in any department of the State Government and pay them their regular salary as per their eligibility and ability keeping in view their long service and more than 20 years period lost thereafter in pursuing litigation before this Court. This judgment takes note of a judgment of Hon'ble the Supreme Court in Civil Appeal No. 3751 of 2021 against the order of the Patna High Court for rehabilitating Supervisors working in the scheme of non formal education, etc."
It is undisputed that despite passing of various judgments, till date the State of U.P. has not formulated any scheme for absorption of persons such as the petitioners.
Considering the aforesaid fact that as yet no scheme for absorption has been formulated by the State of U.P., the claim of the petitioners definitely would arise once such a scheme is formulated. Until and unless the scheme of the State Government is formulated, rights of the petitioners cannot be said to have crystallized and as such it cannot be said that the petitioners are fence sitters.
In view of the aforesaid, it is provided that in case any scheme is formulated by the State of U.P. for absorption of persons working earlier under the scheme of Non-Formal Education, the claim of the petitioners shall also be considered accordingly in terms of the judgment indicated hereinabove.
In terms of the aforesaid, the writ petition stands disposed of.
Order Date :- 2.8.2022 SKT/-