Court No. - 58
Case :- WRIT - A No. - 23131 of 2018 Petitioner :- Ved Prakash And 3 Others Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Arpan Srivastava,Neelabh Srivastava Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
Petitioners, who are four in number, have approached this Court challenging an order of the Director of Education (Secondary), U.P., Lucknow dated 23.08.2018; whereby, petitioners' representation, made in pursuance of the direction issued by this Court in Writ A No. 6001 of 2018 dated 27.02.2018, has been rejected.
It appears that petitioners had earlier approached this Court by filing Writ A No. 62780 of 2013, along with Writ A Nos. 62782 of 2013 and 70291 of 2013, which came to be disposed of with a direction upon the authority concerned to consider petitioners' claim for regularization in accordance with section 33-C of the U.P. Secondary Education Services Selection Board Act, 1982(hereinafter referred to as, 'the Act of 1982'). The observation made by this Court reads as under:-
"So far as the facts are concerned, almost they are all admitted by the respondent counsel. In the present matter for the selection of teachers on substantive vacancy in the institution, the same is required to be moved before the commission under Section 18 of the U.P. Secondary Education Services Selection Board Act, 1982 and when such eventuality happens in institution and regular Assistant Teacher is not made available by the board, the Committee of Management after due advertisement may appoint assistant teacher in L.T. Grade. In pursuance to the advertisement they have applied for the post and selected for the post of Assistant Teacher vide appointment letter dated 20.10.1991 and on the basis of interim order granted by this Court on 22.05.1992 they have been paid salary. After Section 33-C of the Act 1982 came into existence, the petitioners demanded for their regularisation of their services which was eventually rejected by the Regional Committee vide an order dated 28.02.2001 precisely on the ground that the procedure prescribed under Section 18 of the Act was not followed by the Committee namely advertisement had not taken place in two leading newspapers which have wide circulation in the region. Hon'ble Court while deciding the writ petition No. 24305 of 2001 had categorically came into conclusion that no such procedure has been provided under Section 18 of the Act but this direction for making an advertisement in two leading newspapers was given by the Full Bench of this Court in Radha Raizada's case reported in 1994 (3) UPLBEC 1551 and subsequently in Ashika Prasad Shukla Vs. District Inspector of Schools, Allahabad and another, 1998 (3) UPLBEC 1722, a Division Bench of this court held that the direction issued by the Raizada's case (supra) was with prospective in nature and would be applicable in case where the person is appointed subsequent to the decision of this Full Bench and as such the same would not be applicable in the case of the petitioners. Therefore, the first objection initially taken by the regularisation committee does not have any ground to stand and consequently the earlier impugned order dated 28.02.2001 was quashed by this Court with direction to the Joint Director of Education to constitute a committee for regularisation of the petitioners under Section 33-C. Therefore, it is apparent that whatever the objection taken by the respondents had been rejected by this Court while allowing the Writ Petition No. 24305 of 2001. But unfortunately again the respondents have taken a plea while rejecting their claim for regularisation on the ground that the petitioners were not paid salary since 1995, therefore, their claim do not fall under Section 33-C of the Act. The records clearly give an impression that the D.I.O.S. while forwarding the papers on 06th June, 2000 had clearly held that the the appointments of the petitioners were made in between 14.05.1991 to 06.08.1993 and they were working continuously in the institution and subsequently it had also brought on record that the salary of the petitioners were paid on the basis of interim order passed by this Court in the year 1991. Therefore, subsequently, the objection raised by the Regularisation Committee that the petitioners were not paid since 1995 is not sustainable in accordance with the provisions of Section 33-C.
It is suffice to say that it is not disputed that initial appointment of the petitioner in the institution was in accordance with law. The Accounts Officer submitted a detailed report dated 23.05.2001 stating therein that the petitioners were entitled for the salary as well as for regularisation but unfortunately the records would lead to the conclusion that the claims of the petitioners were rejected on the basis on non-existence grounds and at no point of time the department had taken any decision strictly in accordance with the law but time to time they have changed the ground for rejecting the claim of the petitioners. The statue clearly provides that working of a teacher is essential ingredients for consideration of regularisation and the petitioners' cases also fall under the cut off date but the aforesaid consideration had not been made by the regularisation committee. It is evident from the record that the petitioners were working in the institution and if it is admitted situation that the petitioners were working on the date when regularisation rules came into existence they are entitled to be considered for regularisation. Unfortunately the petitioners inspite of their best effort, their services had not been regularized till date, even though their rights accrued 1992. Inspite of various directions issued by this court their future is still at stake. In view of the aforesaid facts and circumstances, the order impugned dated 04.10.2013 passed by the Regularisation Committee headed by the Joint Director of Education cannot be sustained and is hereby set aside. The writ petitions are allowed. The matter is remitted to the Regularisation Committee headed by the Joint Director of Education to consider and decide it within two months, in view of the observations made hereinabove."
Pursuant to the directions of this Court dated 12.08.2015, the matter, relating to regularization of the petitioners' claim, was considered by the Committee constituted under the Act. The Committee proceeded to pass specific order on 30.12.2015 regularizing the services of the petitioners with effect from 01.11.1991. This order has been passed by a Committee chaired by the Joint Director of Education, Agra, which had the District Inspector of Schools as Member, apart from two other members. This order has attained finality. It appears that in respect of petitioners' claim for release of arrears of salary, claim has been forwarded to the authorities for release of payment, but no decision was taken upon it. It was in that context that a writ petition came to be filed before this Court being Writ A No. 6001 of 2018, which has been disposed of by the following orders on 27.02.2018:-
"The writ is disposed of directing the respondent No.2, Director of Education Secondary, Government of U.P., Lucknow to pass final orders on the recommendations of the DIOS dated 28.2.2017 annexed as Annexure No. 14 to the writ petition, within a period of six weeks from the date of production of certified copy of this order."
Even thereafter, the order was not complied with and consequently, a contempt petition had to be filed, in which notices were issued on 24.07.2018. It is thereafter that the impugned order has been passed by the Director of Education. After noticing the relevant facts, the authority has proceeded to observe, in his order, that petitioners' claim for regularization has not been examined by the appropriate regional Committee constituted in terms of section 33-C of the Act of 1982 and therefore, their services cannot be treated to have been regularized in law and they would not be entitled to benefit of such order.
Observation, contained in the order, clearly omits to consider the specific decision taken by the Committee on 30.12.2015. It is pursuant to this decision of the Committee regularizing the petitioners' service that petitioners' claim for release of salary has been forwarded. The order of the Director appears to be based upon complete non-application of mind; in as much as, relevant orders passed by the Committee have been completely ignored.
It is unfortunate that despite a specific direction as well as orders passed in contempt petition, the authority has not cared to look into the records and the order impugned has been passed in routine and mechanical manner.
In the facts and circumstances, the Director of Education (Secondary) is directed to file his personal affidavit, within a period of two weeks from today, justifying his order in light of the decision taken by the Committee on 30.12.2015. The personal affidavit of the Director shall be filed by the next date fixed.
List on 15.11.2018 at the top of the list. Liberty stands reserved to the petitioners to make a mention for the case to be taken upon on that date.
Order Date :- 29.10.2018 Amit Mishra