Allahabad High Court
Pradeep Kumar vs State Of U.P. And 4 Others on 10 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:194455 Court No. - 35 Case :- WRIT - A No. - 12946 of 2023 Petitioner :- Pradeep Kumar Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Prashant Vardhan,Sharad Kumar Counsel for Respondent :- C.S.C.,A.K.S.Parihar Hon'ble Vikas Budhwar,J.
1. Heard Sri Prashant Vardhan, learned counsel for the petitioner, Sri P.K. Shahi, the learned Addl. Chief Standing Counsel, who appears for Respondent Nos. 1 & 3 and Sri A.K.S. Parihar, who appears for the second respondent.
2. This Court while entertaining the writ petition on 11.08.2023 had sought response from the respondents and issued notices upon the fourth and the fifth respondents. There is an office report dated 17.08.2023 that the steps have been taken and the notice were issued to the fourth and the fifth respondents fixing 05.08.2023. Further a service report dated 04.09.2023 shows that as per the said service report the delivery is confirmed upon the fourth and fifth respondents. An affidavit of service has also been filed by the writ petitioner, which is available on record.
3. Till the dictation of the order nobody has put in appearance on behalf of Respondent Nos. 4 and 5, thus this Court is holding the service upon the fourth and fifth respondents to be sufficient. A counter affidavit has been filed on behalf of the third respondent, by the District Inspector of Schools, Kaushambi dated 02.09.2023 to which a rejoinder affidavit has been filed, which is available on record. A statement has been made by Sri A.K.S. Parihar, who appears for the second respondent, Secretary, Madhyamik Shiksha Chayan Ayog, Prayagraj, U.P. that he does not propose to file any response to the writ petition. Thus, the writ petition, with the consent of the parties, be decided at the first stage.
4. The case of the writ petitioner is that the fourth respondent, Adarsh Inter College, Sarai Akil, Kaushambi is an institution recognized under the U.P. Intermediate Education Act, 1921 and the provisions of U.P. Act No.24 of 1971 are applicable. The writ petitioner claims to have been appointed as a permanent Lecturer in History in the fourth respondent-Institution on 01.09.2006 and thereafter he was allowed to officiate as a Principal for the period from 29.08.2019 to 30.08.2019 owing to the fact that Sri Krishnanand Pandey proceeded on two days' leave. As per the writ petitioner, there happened to be certain seniority dispute between the parties, which instigated lodging of the First Information Report (No.0281 of 2019) against the writ petitioner on 29.08.2019 purported to be under Sections 147, 148, 149, 307, 323, 504 and 506 IPC, P.S. Sarai Akil, Kaushambi. It is further the case of the writ petitioner that he was placed under judicial custody from 19.01.2021 to 28.01.2021 and pursuant to the order passed by the Court, he was enlarged on bail by virtue of the order dated 25.01.2021. As per the writ petitioner, the fourth respondent, Adarsh Inter College, Sarai Akil, Kaushambi through its Manager pursuant to a resolution proceeded to pass an order on 27.02.2021 whereby the salary of the petitioner was stopped/ withheld from 19.01.2021 to 28.01.2021 owing to the fact that the writ petitioner was in jail. It is further the case of the writ petitioner that the writ petitioner was also paid increment including the said period. However, the District Inspector of Schools, Kaushambi, third respondent thereafter proceeded to pass an order dated 16.05.2023, whereby it withheld the increment on the premise that as per the Government Order dated 08.12.2008, increment is entitled to be accorded subject to satisfactory completion of six months of prior service.
5. Questioning the orders dated 27.02.2021 passed by the fourth respondent, C/M Adarsh Inter College, Sarai Akil, Kaushambi through its Manager as well as the order dated 16.05.2023 passed by the third respondent, District Inspector of Schools, Kaushambi, the writ petitioner has preferred the present writ petition. The writ petition was entertained by this Court on 11.08.2023, wherein the following orders were passed: -
"The contention of the learned counsel for the writ petitioner is that pursuant to the lodging of the criminal case the writ petitioner was confined in jail from 19.1.2021 to 28.1.2021 and thereafter he was allowed to assume the charge. He submits that withholding of the increment and treating it to be discontinuation of the service is not permissible as in fact the writ petitioner was never placed under suspension and assuming that it was deemed suspension then too he was not made entitled to subsistence allowance. He further submits that the aforesaid action while withholding the increments is not permissible under law.
Paragraphs 29, 30 and 31 it is being sought to be contended that the order has been passed without opportunity of hearing and in part heard violation of the provisions contained under the U.P. Intermediate Education Act, 1921.
Learned counsel for the petitioner submits that the writ petitioner is also being offered officiation of the Principal and the salary also.
Sri Santosh Kumar Mishra, who appears for the respondent no.1 and 3 and Sri A.K.S.Parihar, learned counsel for the respondent no.2 seek time to obtain instructions or to file an affidavit.
Issue notice to respondents 4 and 5.
Steps to be taken by 17.8.2023 by both ways.
Affidavit of service be filed before the next date fixed.
Counter affidavit be filed by 25.8.2023 and be served upon by learned counsel for the writ petitioner by 26.8.2023.
Rejoinder affidavit be filed in the meantime.
Put up this case on 5.9.2023 as fresh."
6. Pursuant to the order of this Court as recapitulated hereinabove, a counter affidavit has been filed by the District Inspector of Schools, Kaushambi dated 02.09.2023 to which a rejoinder affidavit has been preferred. As already noticed, despite service upon the fourth and fifth respondents, nobody appeared on their behalf.
7. The learned counsel for the petitioner while assailing the said orders has sought to submit that the order dated 16.05.2023 passed by the third respondent, District Inspector of Schools, Kaushambi is in violation of principles of natural justice as according to him, the said order has been passed without putting the writ petitioner to notice as in this regard the writ petitioner seeks to rely upon paragraphs-30 and 31 of the writ petition. He further submits that had the writ petitioner been put to notice, the writ petitioner would have demonstrated that there was no occasion to pass the said order. According to him, he is entitled to the said benefit as till date, he has not been suspended, though it is the stand of the respondents that the provisions pertaining to the deemed suspension will come into service. He further submits that he is already working on the post in question and getting the salary for the period subsequent to that period, thus the same cannot be withheld.
8. Sri P.K. Shahi, as well as Sri A.K.S. Parihar on the other hand submits that in view of the averments contained in the counter affidavit, the writ petitioner is not entitled to any relief, particularly for the reason that the writ petitioner was confined in jail, and thus he is not entitled to the payment of salary for the said period. He further submits that in the wake of the Government Order dated 08.12.2008, satisfactorily service is a condition precedent for the purposes of payment of increment and in the present case, since the writ petitioner has been languishing in jail for the said period, thus he is not entitled for the said benefits. It is the further submission of the learned counsel for the respondents that on 23.08.2023, a notice was issued to the Committee of Management followed by a communication dated 01.05.2023 of the District Inspector of Schools, Kaushambi addressed to the Manager/ Officiating Principal requiring them to submit their objection to the same. However, the writ petitioner did not submit its reply. Learned counsel for the writ petitioner further submits that even in fact, the writ petitioner has also made a communication dated 02.06.2023 to the Manager of the Institution in question that the increments which have been withheld be postponed, as owing to the illness of the mother of the writ petitioner. Finally it is being sought to be argued on behalf of the respondent, Sri P.K. Shahi, learned Addl. Chief Standing Counsel, Sri A.K.S. Parihar that in case as per the writ petitioner , he has not been heard, then the writ petitioner may represent his cause before the District Inspector of Schools, Kaushambi, third respondent, who shall address to the claim of the writ petitioner and thereafter pass an order in that regard.
9. To such submission, learned counsel for the writ petitioner has no objection to the same and gracefully accepts the same.
10. Considering the submission of the rival parties as well as the stand taken by them, the writ petition is being disposed off without seeking any response from the respondents granting liberty to the writ petitioner to approach the third respondent, District Inspector of Schools, Kaushambi with a comprehensive representation accompanied with self-attested copy of the writ petition and, who shall, on the receipt of the same, accord hearing to the writ petitioner as well as the fourth and the fifth respondents and pass appropriate orders within a period of three months from the date of production of certified copy of the order.
11. Needless to point out that the writ petition has been decided in absence of participation of the fourth and the fifth respondents, hence passing of this order may not be construed to an expression that this Court has adjudicated the matter on merits.
12. With the aforesaid observations the writ petition stands disposed off.
13. Affidavit of service as well as the Rejoinder Affidavit filed today are taken on record.
Order Date :- 10.10.2023 N.S.Rathour