Court No. - 29
Case :- SPECIAL APPEAL DEFECTIVE No. - 272 of 2021
Appellant :- Hari Lal
Respondent :- The State Of U.P. And 4 Others
Counsel for Appellant :- Shivendu Ojha,Radha Kant Ojha (Senior Adv)
Counsel for Respondent :- C.S.C.,Gopal Dwivedi
Hon'ble Munishwar Nath Bhandari,Acting Chief Justice Hon'ble Ajai Tyagi,J.
Order on Civil Misc. Exemption Application No. 1 of 2021 The application seeking exemption from filing certified copy of the order of the High Court is allowed.
The defect stands cured.
Order on Memo of Appeal Heard Sri R.K. Ojha, learned Senior Counsel assisted by Sri Shivendu Ojha, learned counsel for the appellant, Sri Gopal Dwivedi, learned counsel for respondent no. 5 and Sri P.K. Ganguly, learned Additional Chief Standing Counsel for the respondents-State.
By this appeal, a challenge made to the judgment dated 9th February, 2021 whereby the writ petition preferred by the petitioner- appellant was dismissed. The writ petition was filed to challenge the order dated 10th July, 2019 passed by the Joint Director of Education, State of U.P., rejecting the claim of the petitioner-appellant from exemption of basic teacher training certificate course.
The facts taken into consideration by the learned Single Judge shows that petitioner-appellant joined the service on the post of Assistant Teacher in a primary section of Ranjit Pandit Intermediate College on 1st January, 1988. The District Inspector of Schools issued an order on 2nd November, 1999 to grant exemption from training course and accorded payment of salary to the untrained teacher. The claim of the petitioner-appellant was however rejected by the order dated 1st April, 2017 which was challenged by the petitioner-appellant through a writ petition bearing Writ-A No. 54006 of 2017. The writ petition therein was allowed with the following directions quoted herein:
“The writ petition is taken up for disposal at the admission stage itself. Perusal of the Government Order dated 21.10.1994 would go to show that provision has been made for exemption from training in respect of teachers of primary institutions attached to recognized and aided Secondary Institution in specified exigency. One of such exigency is that the teacher is left with two years to retire. On facts it is shown that such contingency occurs in the facts of the present case. The Joint Director of Education while rejecting the claim of the petitioner has not adverted to this aspect of the matter. Consequently, the order dated 1.4.2017 cannot be sustained and is quashed.
The writ petition is allowed.
A fresh decision would be taken by the Joint Director of Education in accordance with the Government Order dated 21st October, 1994 as well as subsequent Government Order dated 9.12.2003 by way of a reasoned order within a period of six weeks from the date of presentation of a certified copy of this order before him.”
In pursuance to the direction quoted above, the impugned order was again passed denying the claim of the exemption from the training course. The writ petition was filed in reference to the Government Order dated 9th December, 2003 and prior to it 6th September, 1994. In the order dated 9th December, 2003, exemption from the training course was given and relevant portion of it is submitted herein for ready reference:
"उपर्यु"क्त वि&षर्युक वि)देशालर्यु के पत्रांक सा 0 (3)/सा-
(1)/शिशवि&र/266 ए 0/2002-03, विद)ांक 4 फर&री, 2003 के संदर्भ" में सम्र्युक् वि&चारोपरान्त म!झे आपसे र्युह कह)े का वि)देश ह!आ है विक अशासकीर्यु सहार्युता प्राप्त माध्र्युविमक वि&द्यालर्युों से सम्बन्ध प्राइमरी प्रर्भाग में वि)र्युक्त ए&ं कार्युर" त अप्रशिशक्षि3त सहार्युक अध्र्युापकों को प्रशिश3ण मविक्त! प्रदा) विकर्युे जा)े हेत! वि)म्)&त् वि)ण"र्यु लिलर्युे गर्युे हैं--
1. अशासकीर्यु सहार्युता प्राप्त माध्र्युविमक वि&द्यालर्युों से सम्बन्द्ध प्राइमरी
प्रर्भाग में वि)र्युक्त ए&ं कार्युर" त जिज) अप्रशिशक्षि3त सहार्युक अध्र्युापकों की से&ार्युे विद)ांक 31.12.2003 को 5 &ष" की हो गर्युी हो अथ&ा जिज)की से&ा वि)&ृलि< में मात्र दो &ष" शेष रह गर्युे हो , उन्हे (5 &ष" के अध्र्युाप) काल क प्रक्षितबन्ध के साथ) प्रशिश3ण म!विक्त प्रदा) की जाए।"
The order dated 9th December, 2003 provides exemption from the training course to those who have completed five years service as on 31st December, 2003 or remains two years in retirement. Petitioner-appellant was appointed in the year 1988 thus, completed more than five years service yet he was not extended the benefit of exemption from training course on the pretext that he was given pay scale of untrained teachers with effect from 2nd November, 1999. The learned Single Judge accordingly dismissed the writ petition holding that the petitioner-appellant had not completed five years of service as on 31st December, 2003.
We find that the Government Order dated 9th December, 2003 does not provide or mandate five years service in the pay scale of untrained teachers rather what is required, five years service as Assistant Teacher as on 31st December, 2003. The learned Single Judge could not have interpolated a condition not given under the Government Order dated 9th December, 2003. It is more so when document/record shows working of the petitioner- appellant since 1st January, 1988 and even admission about the payment of salary. The aforesaid is borne out from Annexure 7 to the writ petition wherein not only date of appointment of the petitioner-appellant is given but fact pertaining to payment of salary. The petitioner-appellant is thus covered by the Government Order dated 9th December, 2003.
In light of the aforesaid, we find reasons to cause interference in the judgment of the learned Single Judge. The judgment is accordingly set aside so also the order dated 10th July, 2019 challenged before the learned Single Judge with the declaration that petitioner-appellant is entitled to the exemption pursuant to the Government Order dated 9th December, 2003.
With the aforesaid, appeal is allowed.
Order Date :- 27.7.2021 VMA
(Ajai Tyagi, J.) (Munishwar Nath Bhandari, A.C.J.)