Court No. - 28
Case :- WRIT - A No. - 16316 of 2008 Petitioner :- Mahendra Swarup Shukla Respondent :- State Of U.P. And Others Counsel for Petitioner :- L.N. Pandey,K.K.Mishra,Varun Mishra Counsel for Respondent :- C.S.C.
Hon'ble Ajay Bhanot,J.
1. Heard Sri Varun Mishra, Advocate holding brief of Sri K.K. Mishra, learned counsel for the petitioner and Sri Deepak Verma, learned Additional Chief Standing Counsel for the respondents.
2. Petitioner claimed that he was appointed as Assistant Teacher in LT Grade on 07.07.1978 in Chaudhary Raghu Nandan Singh Inter College, Rahatpur, Auariya, District Etawah. Thereafter he was transferred from the said college to Galuapur Inter College, Galuapur, District Kanpur Dehat by order dated 26.11.1985. The LT Grade was denied to the petitioner despite twelve years of service in the CT Grade.
3. Aggrieved, petitioner preferred a writ petition before this Court. The writ petition was registered as Civil Misc. Writ Petition No. 32530 of 1990 (Mahendra Swarup Shukla Vs District Inspector of Schools, Kanpur Dehat and others). The aforesaid writ petition was disposed of by order dated 24.05.2007. The aforesaid order is being reproduced in its entirety as it would be relevant for an adjudication of the instant controversy.
" Heard counsel for the parties and perused the record.
The case of the petitioner is that he was appointed as Assistant teacher in L.
T. grade on 7.7.1978 under Section 4(2) of U.P. High School and Intermediate (Reserve Pool Teacher) Ordinance No. 1 of 1972 during the period when teachers were on strike for teaching High School classes in Chaudhary Raghunandan Singh Inter College, Rahatpur, Auraiya district Etawah (for short 'College'). He was transferred from the College to Galuapur Inter College, Galuapur, District Kanpur (For short ' Galuapur College) vide order dated 26.11.1985, passed by the Deputy Director of Education, IVth region, Allahabad. He claims that he having competed about 12 years of service in C.T. Grade is entitled to L. T. Grade but despite several representations to the District Inspector of Schools, Kanpur Dehat, his grievances has not been decided by the District Inspector of Schools, Kanpur Dehat.
Despite repeated opportunities, no counter affidavit has been filed hence averments made in the writ petition, are to be taken as correct in view of laid down by Hon'ble the Apex Court in Choksi Tube Company Ltd. Vs. Union of India-1997 (II) SCC 179 holding that in the absence of counter affidavit, averments contained in the writ petition are to be treated as correct. The petitioner having completed more than 10 years continuous service in C.T. Grade.
The Standing counsel submits that the District Inspector of Schools, Kanpur Dehat may be directed to decide the claim of the petitioner with in a time bound framed.
Accordingly, the writ petition is disposed of with the direction to the District Inspector of Schools, Kanpur Dehat, respondent no. 1 to consider the representation of the petitioner (appended as Annexure 3 to the writ petition) in accordance with law and pass a speaking and reasoned order within a period of 2 months from the date of production of certified copy of this judgment together with a fresh and comprehensive representation by the petitioner. No order as to costs."
4. In pursuance of the order passed by this Court the petitioner submitted a representation to the District Inspector of Schools, Kanpur Dehat. The representation has been rejected by the order dated 18.12.2007.
5. Petitioner is aggrieved by the order dated 18.11.2007 and has assailed the same in the instant writ petition.
6. Learned counsel for the petitioner submits that the petitioner is entitled to salary of LT Grade from 1988 onwards and all benefits of service accruing as a result thereof, including enhancement of pension. He submits that the petitioner was appointed on 07.07.1978 at Etawah and was transferred on 26.11.1985 to Kanpur. The service of the petitioner from 1978 to 1985 was continuous. The petitioner is entitled to benefits of service from 1978 till 1985 which have been denied.
7. Sri Deepak Verma, learned Additional Chief Standing Counsel has called attention to the inconsistent stand taken by the petitioner at different stages of litigation. He has also drawn attention to the findings returned by the District Inspector of Schools, Kanpur Dehat in the impugned order dated 18.12.2007. He submits that the findings have not been refuted by pleadings made in the writ petition and are not to be interfered with.
8. Heard learned counsel for the parties.
9. The stand taken by the petitioner in his representation before the DIOS, Kanpur Dehat is to the effect that he was initially appointed as Assistant Teacher CT Grade in Chaudhary Raghu Nandan Singh Inter College, Rahatpur, Auariya, District Etawah on 07.07.1978. He drew his salary for one month. Thereafter the petitioner was nominated to the reserved pool. It was claimed that the petitioner was then absorbed in Janta Inter College, Kakor, Etawah. There was no post in the aforesaid college related to the subject. The petitioner did not assume charge and never discharged his duties on the aforesaid post. The petitioner further states that he was absorbed in Uchhttar Madhyamik Vidyalaya, Sheetalpur, Etawah by order dated 14.08.1978. However the petitioner was not permitted to take charge or discharge his duties in the aforesaid institution. The case of the petitioner as recorded in the impugned order is that a vacancy arose in Galuapur Inter College, Kanpur Dehat against which he was appointed on 09.09.1984. No case of transfer was set up by the petitioner before the authority. It is noteworthy that this stand is inconsistent with the stand taken before this Court in Civil Misc. Writ Petition No. 32530 of 1990 (Mahendra Swarup Shukla Vs District Inspector of Schools, Kanpur Dehat and others). Evidently, material facts were not disclosed to this Court in the said writ petition.
10. The admitted case of the petitioner before DIOS, as recorded in the order dated 18.12.2007 shows that there was no continuity of service of the petitioner from 1978 to 1985. He had not joined any institution, on the foot of the purported letters of appointment or absorption. On the contrary the records before the DIOS, Kanpur Dehat attest to the fact that the petitioner was appointed on 25.09.1985. The appointment was made on an adhoc basis against a leave vacancy. The petitioner has been functioning in the aforesaid institution in the capacity of an Assistant Teacher CT Grade w.e.f. 25.09.1985. The petitioner could not establish his continuity of service from 1978 to 1985. The claim of the petitioner is based on no material and has not been substantiated by any document in the record. The petitioner himself has admitted before DIOS that he was appointed in the aforesaid institution in Galuapur Inter College, Galuapur, District Kanpur Dehat on 09.09.1984. He did not set up any case for transfer to the aforesaid institution.
11. The petitioner has not been able to show any order in the record before DIOS or before this Court transferring him from any institution to Galuapur Inter College, Kanpur Dehat where he joined in the year 1985. The purported letters of appointment from 1978 to 1985 were not proved to the satisfaction of the competent authority. The order passed by DIOS discloses that the petitioner was appointed in the year 1985 and was not transferred there. This recital has not been rebutted by any credible material or pleadings.
12. From the record there is no continuity of service of the petitioner since his alleged appointment in the year 1978 to 1984 had not been established. The findings of the DIOS to the effect that the petitioner has been functioning only w.e.f. 25.09.1985 have not been refuted with any credible material or pleadings before this Court. There is no question of grant of service benefits for a period during which he did not assume charge and did not work.
13. In this view of the matter the claim of the petitioner for grant of benefits of service after granting continuity from 1978 to 1985 is misconceived and was rightly rejected by the order dated 18.12.2007.
There is no infirmity in the order dated 18.12.2007 passed by respondent no. 2. The order dated 18.12.2007 is legal and valid. The prayers for quashment of the order dated 18.12.2007 and consequential benefits from 1978 onwards are rejected.
14. At this stage, learned counsel for the petitioner recasts his relief submits that the petitioner is not being paid his retiral benefits. He prays that the terminal/pensionary dues of the petitioner may be released. In case the petitioner is not being paid his retiral dues it is open to him to file a representation in this regard to the competent authority. The competent authority shall fix the pension and other retiral dues and release the same to the petitioner within three months. The fixation of the pension shall be made in the light of the observations made in the judgment and in accordance with law.
15. Writ petition stands disposed of.
Order Date :- 30.7.2018 Pravin