Court No. - 39
Case :- WRIT - A No. - 11420 of 2019 Petitioner :- Baijnath Singh And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shailesh Kumar Shukla,Ashok Khare Sr. Advocate Counsel for Respondent :- C.S.C.,Mohd Shere Ali Hon'ble Neeraj Tiwari,J.
Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Shailesh Kumar Shukla, learned counsel for the petitioners, learned Standing Counsel for the respondent nos. 1 and 2 and Mohd. Shere Ali, learned counsel for the respondent nos. 3 and 4.
Learned counsel for the petitioners submitted that petitioners were initially appointed as Assistant Teacher in the primary institution run and managed by Basic Shiksha Parishad on different dates between the years 1985 to 1987. Their services are governed by the provisions of the U.P. Basic Education (Teachers) Service Rules, 1981. Their claim for promotion to the next higher post fell for consideration as per Rule-19 of the Rules of 1981, and orders were passed in their favour, granting them promotion to the post of headmaster of primary schools and Assistant Teachers of the Junior High School run by Parishad. This promotion was granted to them on 30.10.2002. It appears that a subsequent exercise for promotion was also undertaken on 17.6.2008, whereby petitioners were further promoted as a headmaster of Junior High School. Total number of 466 candidates were promoted as such. Petitioners alleged that they have joined pursuant to the orders of promotion, but salary was not paid to them. It was next submitted that petitioners approached this Court by filing Writ-A No. 38253 of 2012, which was disposed of vide order dated 7.8.2012 with direction to the District Basic Education Officer, Mahrajganj to see and ensure that final decision is taken in the matter and promotional pay scale is accorded to the eligible incumbents, preferably within next two months from the date of production of certified copy of the order. Ultimately claim of the petitioners was examined by the District Basic Education Officer, Mahrajganj and decided vide order dated 29.5.2013.
The petitioners feeling aggrieved by the order dated 29.5.2013 challenged the same by filing Writ-A No. 34672 of 2013, which was disposed of vide order dated 17.4.2013 with direction to the respondent concerned to consider the claim of the petitioners in light of the observation made by this Court. The operative portion of the order dated 17.4.2013 is quoted below:-
"Having examined the respective submissions raised at the bar, this Court is of the view that merits of the promotion granted to private respondents need not be gone into on merits, particularly as those persons must have retired by now. They were continuing in employment after having attained the age of superannuation due to grant of sessions benefit. Upon the conclusion of the session, their appointment otherwise would have come to an end. Since about 88 persons were from such category, it is expected that large number of vacancies would have come into existence after their retirement.
In that view of the matter, it would be appropriate to dispose of this petition with a direction upon the respondent concerned to consider the claim of petitioners for promotion against the vacancy that may have come into existence on account of retirement of 88 persons in accordance with the provisions of the Rules of 1981. Required consideration would be made within a period of four months from the date of presentation of certified copy of this order. Though, this Court has not interfered with the order dated 29.5.2013 but it is clarified that this order would no longer stand in the way of fresh consideration of petitioners' claim for promotion, in accordance with law.
With the aforesaid observations, writ petition stands disposed of."
Learned counsel for the petitioners next submitted that again impugned order dated 28.6.2019 has been passed by respondent no.4-District Basic Education Officer, Maharajganj without considering the direction given by this Court vide order dated 17.4.2013 in Writ-A No. 34672 of 2013. In fact, there is no finding in the impugned order with regard to direction given by this Court in the aforesaid writ petition, therefore, the impugned order dated 28.6.2019 is bad in law and liable to be quashed.
Mohd. Shere Ali, learned counsel for the respondent nos. 3 and 4 fairly conceded and submitted that the impugned order dated 28.6.2019 passed by respondent no.4-District Basic Education Officer, Maharajganj may be quashed and the matter may be remanded back to the respondent no. 4- District Basic Education Officer, Maharajganj for passing afresh order considering the direction given by this Court vide order dated 17.4.2013 in Writ-A No. 34672 of 2013.
Considering the facts and circumstances of the case, this writ petition is allowed. The order dated 28.6.2019 passed by respondent no. 4-District Basic Education Officer, Maharajganj is quashed. The matter is remanded back to the respondent no. 4-District Basic Education Officer, Maharajganj to pass afresh order considering the direction given by this Court vide order dated 17.4.2013 in Writ-A No. 34672 of 2013 maximum within two months from the date of production of certified copy of this order.
Order Date :- 25.7.2019 Rmk.