Court No. - 36
Case :- WRIT - A No. - 8368 of 2021 Petitioner :- Than Singh Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Sankalp Narain,Hritudhwaj Pratap Sahi Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri H.P. Sahi, learned counsel for the petitioner and Shri Sanjay Kumar Singh, learned Addl. Chief Standing Counsel for State respondent nos.1, 2 and 4.
Present writ petition has been preferred assailing the validity of the order dated 22.4.2021 passed by District Inspector of Schools (DIOS), Etawah and for a direction to respondent authorities to release the post-retiral benefits to the petitioner within stipulated period.
The record in question reflects that there is an institution known as "Sri Prahlad Smarak Inter College, Chaupla, Etawah", (in short "the institution in question"), which is duly reognized and governed by the provisions of Intermediate Education Act and various Regulations framed thereunder from time to time. The institution receives grant-in-aid from the State Government, consequently the provisions of Payment of Salary Act is also applicable upon the institution. The petitioner was initially appointed as a Clerk in the institution on 1.7.1982 after following procedure. The institution was initially recognized upto Junior High School and thereafter after the appointment of the petitioner, the institution was upgraded and recognized as High School in the year 1982-83. It is contended that since the institution was upgraded, the services of the employees working in the institution were to be regularized as per the provisions of Regulation 4 of the Chapter II of the Intermediate Education Act. The relevant papers were also placed before the DIOS, who in turn issued an order on 27.2.1985, regularizing the services of the employees including the petitioner. The petitioner continued to work as a Clerk in the institution and was also paid salary in accordance with law. Meanwhile, the Committee of Management issued a chargesheet to the petitioner on 20.1.1996 levelling various charges against the petitioner. On 2.7.1996 the DIOS passed an order according approval to the termination of the petitioner. Against the same the petitioner filed Writ Petition No.26482 of 1996 (Than Singh v. State of U.P. & Ors.), which was disposed of on 14.7.2005 remitting back the matter to DIOS to decide the matter afresh. Consequently, again by order dated 1.2.2006 the claim of the petitioner was rejected upholding the order of termination. Against the same the petitioner had again approached this Court by way of filing Writ Petition No.15746 of 2006, which was allowed on 4.8.2014 and again the matter was remitted to the DIOS to take a decision afresh. In response to the said order, again the claim of the petitioner was considered by the DIOS and termination order was quashed vide order dated 9.4.2015. However, the petitioner was treated to have been absorbed on the post of Assistant Clerk with effect from the issuance of the order dated 9.4.2015. It is contended that pursuant to the aforesaid order the salary of the petitioner was fixed treating him to be appointed w.e.f. 9.4.2015 and his salary was fixed as Rs.11,383/- as a Daftari, which is Class-IV post and a person, who was appointed subsequent to the petitioner in the year 1996, his salary was fixed as Rs.24,593/-. Being aggrieved by the order dated 9.4.2015, the petitioner had approached this Court by way of filing Writ Petition No.38698 of 2015, which was allowed on 29.11.2019, the operative portion of which is quoted as under:-
".........10. The contention advanced on behalf of petitioner appears convincing at the outset but a deeper examination persuades the Court to accept it in part only. It is not in dispute that payment of salary in the institution concerned is disbursed by the State under the provisions of the Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971. The post of Assistant Clerk being one, the State is required to release salary only against one post. After the order of termination was passed by the authority concerned it was Sobaran Singh who was granted conditional promotion and he actually worked as Assistant Clerk and also drew salary. It would be unjust for this Court to direct recovery of the salary for the post of Clerk from Sobaran Singh, as he has admittedly worked during this period. In the absence of post it would not be open for this Court to direct salary for the period during which petitioner was prevented from working as it would amount to payment of salary to two persons against one post. The petitioner would also be justified in complaining about denial of salary since he was prevented from working, although he was available for work. The equities, therefore, needs to be balanced.
11. Having considered all such aspects, this Court is of the opinion that while granting relief of reinstatement alongwith continuity of service, the petitioner is entitled to be adequately compensated in lieu of denial of back wages for the period in question. A consolidated sum of Rs.2 lacs towards back wages would be paid to the petitioner by the State. It would, however, be open for the State to recover such amount from the then Management responsible for illegally denying work to petitioner. The petitioner would also be entitled to correct fixation of his salary etc. on account of continuity in service. The needful action at the level of respondents would be undertaken within a period of three months from the date of presentation of certified copy of this order.
12. Writ petition, accordingly, is allowed. No order is passed as to costs."
Once the aforesaid order dated 29.11.2019 was not complied with, the petitioner had filed Contempt Application No.3513 of 2020 in which notices were issued. It is contended that in response to the same only a sum of Rs.2 lacs as back wages was paid but the remaining relief i.e. continuity in service and pay fixation was not granted. The said contempt application is still pending consideration.
Against the judgment and order dated 29.11.2019 passed in Writ Petition No.38698 of 2015 the State authorities filed Special Appeal Defective No.330 of 2020. It is stated that in the said special appeal neither delay has been condoned nor any interim order had been passed. Only notices have been issued on the delay condonation application and the said special appeal is stated to be still pending consideration.
Meanwhile, the petitioner had superannuated in the year 2019. Inspite of his retirement, when the petitioner was not paid his post retiral dues including the pension, he had preferred Writ-A No.14662 of 2020 (Than Singh v. State of U.P.), which was disposed of on 19.1.2021 directing the DIOS to decide the claim of the petitioner within three months. Pursuant to the said dictum, the DIOS has passed an order dated 22.4.2021, whereby the claim of the petitioner was negated only on the ground that since the Special Appeal No.330 of 2020 against the order dated 29.11.2019 passed in Writ-A No.14662 of 2020 is pending consideration, hence payment of any post retiral benefits is not justified. It is further stated that since there is no final or interim order existing in the said special appeal, therefore, the payment of post retiral benefits due to the petitioner is not possible to be paid.
Shri H.P. Sahi, learned counsel for the petitioner has vehemently contended that while allowing the writ petition on 29.11.2019 the Court has already accorded relief of reinstatement along with continuity of service. So far as back wages for the period in question, consolidated sum of Rs.2 lacs towards back wages was directed to be paid by the State. However, leave was also accorded to the State to recover such amount from the then Management responsible for illegally denying work to the petitioner. The Court further directed that the petitioner would also be entitled to correct fixation of his salary etc. on account of continuity of service. The said action was directed to be completed within three months.
It is contended that admittedly the State towards back wages paid a consolidated amount of Rs.2 lacs. It is contended that merely on the basis of pendency of special appeal rightful claim of the petitioner cannot be denied. The respondents have deliberately tried to circumvent the order passed by the writ Court. In the absence of any restraint order in the special appeal, such leave cannot be accorded to the respondents. Once the continuity is already accorded in the light of the judgment passed by the writ Court, the respondents may be directed to release the retiral benefits to the petitioner.
So far as factual aspect is concerned, the same is not disputed by learned Addl. Chief Standing Counsel, however, he has reiterated that under the present facts and circumstances the order impugned is sustainable as the matter is pending consideration before the Division Bench of this Court.
Heard rival submissions and perused the record.
The Writ Petition No.38698 of 2015 was preferred against the order dated 9.4.2015, whereby the respondents had denied the petitioner continuity of service and back wages for the period in question. Meanwhile, one Sobaran Singh was granted conditional promotion and he actually worked as Assistant Clerk and also drew salary. In such situation, the Court while allowing the said writ petition was of the opinion that qua one post two incumbents cannot be accorded salary. But at the same time the Court opined that the petitioner was liable to be reinstated with continuity of service and in lieu of back wages for the period in question consolidated sum of Rs.2 lacs was directed. Nowhere any leave was available to the respondents not to accord continuity in service. Once the Court has allowed the writ petition and directed the respondents to do the needful within three months, in the absence of any restraint order in the special appeal, even though the same is pending consideration, the rightful claim of the petitioner cannot be denied. Moreover the petitioner is already superannuated and he is entitled for retiral benefits.
The Apex Court has repeatedly held that pension is succour for post-retirement period and it is not a bounty payable at will, but a social welfare measure as a post-retirement entitlement to maintain the dignity of the employee. The top court said that pension facilitates a retired Government employee to live with dignity in his winter of life and, thus, such benefit should not be unreasonably denied to an employee, more so on technicalities. Pension is not a bounty payable on the sweet will and pleasure of the Government and that, on the other hand, the right to pension is a valuable right vesting in a government servant.
The Apex Court has also repeatedly held that mere preferment of an appeal does not automatically operate as a stay of the decision under appeal and till an application for stay is moved and granted by the appellate Court, or, in the alternative, the Court which rendered the decision is moved and grants an interim stay of the decision pending the preferment of an appeal and grant of stay by the appellate Court, the decision continues to be operative. Indeed, non-compliance with the decision on the mere ground that an appeal is contemplated to be preferred or is actually preferred, and that, therefore, the matter is sub- judice, may amount to contempt of Court punishable under the Contempt of Courts Act, 1971. It is trite that an appeal does not, ipso facto, operate as a stay of proceedings of a court. Therefore, an appellant desirous of appealing the judgement of a lower court must take a further step by filing an application to stay the proceedings execution of judgment complained against pending the outcome of an appeal.
In the aforesaid facts and circumstances, the order impugned cannot sustain and is accordingly set aside. A direction is issued to the DIOS, Etawah to accord retiral benefits to the petitioner in the light of the observations so made by the writ Court in its order dated 29.11.2019 and in view of the observations made above. The said exercise should be done within two months from the date of production of copy of this order.
The writ petition stands allowed accordingly.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 27.7.2021 Jaswant/SP/