Court No. - 18
Case :- WRIT - A No. - 8905 of 2018 Petitioner :- Brijendra Swaroop Jaiswal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Narendra Kumar Chaturvedi Counsel for Respondent :- C.S.C.,Arun Kumar
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri N.K. Chaturvedi, learned counsel for the petitioner; learned Additional Chief Standing Counsel for the State respondents and Shri Arun Kumar, Advocate appearing for the second respondent.
Petitioner is before this Court with the request to direct the second and third respondents to ensure the joining of petitioner as Headmaster in the Institution and to disburse his arrear of salary (suspension period) of the petitioner since 08.11.2016 to 18.04.2017.
It appears that earlier the petitioner has filed Writ Petition no.19593/2017 (Brijendra Swaroop Jaiswal vs. State of U.P. and others) challenging the order dated 18.04.2017 by which the services of petitioner has been terminated and sent the same for approval before the District Basic Education Officer on the ground that under Rule 15 of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Condition of Services of Teachers) Rules, 1978, no teacher can be suspended from service without prior approval of the District Basic Education Officer. Finally, the said writ petition has been dismissed vide order dated 05.05.2017 on the ground that the BSA has already returned the papers as the same has not been passed without prior permission of BSA. Thereafter on 29.06.2017, the Basic Education Officer concerned has asked the Committee of Management of the Institution to ensure his joining as well as for release of his arrears of salary. Such action of the BSA has also been assailed by the Committee of Managment by preferring Writ Petition no.40255/2017 (C/M Kanhaiya Junior High Schools Sjhahpur (Geeta Vatika) and another vs. State of U.P. and others) notices have been issued but no interim order has been passed. Record in question further reflects that even the Special Appeal has also been filed bearing Special Appeal no.516/2017 (C/M Kanhaiya Junior High Schools Sjhahpur (Geeta Vatika) and another vs. State of U.P. and others) and finally on 22.09.2017, the appeal has been disposed of with following observations:-
"In the facts and circumstances of the case we are of the considered opinion that the committee of management cannot withhold the salary of respondent no.4 till a valid order terminating his appointment with the prior approval of the Basic Shiksha Adhikari is made.
We therefore in the facts of the case dispose of the present special appeal as well as Writ-A No.40255 of 2017 with the following direction:
(a). the committee of management appellant before us shall ensure that the salary bill of the respondent no.4 from the due date i.e. 18.4.2017 is submitted before the Basic Shiksha Adhikari within three weeks from today which salary bill shall be cleared by the Basic Shiksha Adhikari within a period of two weeks thereafter,
(b). the Basic Shiksha Adhikari is directed to take a decision on merits of the resolution dated 6.5.2017 after affording opportunity of hearing to the committee of management as well as respondent no.4. He shall pass a reasoned order.
The exercise in that regard shall be completed within four weeks of the receipt of certified copy of this order. All consequential action shall be taken accordingly.
Special appeal as well as Writ-A No.40255 of 2017 stand disposed of.
Let a copy of this order be kept on records of Writ-A No.40255 of 2017 and the same shall be consigned to records."
In this backdrop, learned counsel for the petitioner submits that once the Special Appeal in question has been disposed of asking the Basic Education Officer to take a decision on merits of the resolution dated 06.05.2017 passed by the Committee of Management of the Institution, after affording opportunity of hearing to the Committee of Management as well as contesting respondent and thereafter after taking comments from the Committee of Management, detailed order has been passed by the Basic Education Officer on 30.12.2017 and even the said order has been assailed by the Management by preferring Writ Petition no.8261/2018 wherein no interim order was passed by this Court and thereafter the Basic Education Officer has again asked the Management of the Institution to ensure joining and salary of petitioner on 30.01.2018 and 15.03.2018 and the petitioner is running from pillar to post but his joining has not been ensured and as such, this Court should come to the rescue and reprieve of the petitioner.
Learned Additional Chief Standing Counsel as well as Shri Arun Kumar, Advocate have not disputed the factual as well as legal aspect of the matter.
This Court has the occasion to peruse the record in question and finds that there is chequered history of litigation between the Committee of Management as well as petitioner and at no point of time any adverse/interim order has been passed by this Court against the petitioner and for one reason or other, the joining of the petitioner has not been ensured till date.
Considering the above facts and circumstances, this Court is of the considered opinion that in case there is no other impediment, the Authority has to ensure for facilitating the petitioner, so that he may be given the charge of Head Master of the Institution.
Accordingly, the Writ Petition is disposed of with the direction to the the District Basic Education Officer, Gorakhpur to ensure joining of petitioner on the post of Head Master of the Institution forthwith. This Court hopes and trust that the Committee of Management of the Institution shall extend all sort of co-operation in the matter.
Order Date :- 29.3.2018 A. Pandey