Allowed

Sant Ram Saxena v. District Basic Education Officer and Others

Allahabad HC15 Mar 2018WRIA/56914/2007

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by a retired government servant challenging disciplinary proceedings conducted without proper notice of charges and without the mandatory prior approval of the District Basic Education Officer. The court held the proceedings vitiated and, due to the petitioner's superannuation, directed the release of arrears of salary and pension with interest. The mat

What did the court decide?

The petitioner is entitled to arrears of salary from 16 March 2004 to the date of retirement and post-retiral dues including pension, along with 6.5% simple interest from 1 March 2008.

Sant Ram Saxena Vs District Basic… — Pension and Retirement Benefits | Allahabad HC (2018)

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Court No. - 34

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Case :- WRIT - A No. - 56914 of 2007

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Petitioner :- Sant Ram Saxena Respondent :- District Basic Education Officer And Others

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Counsel for Petitioner :- Indra Raj Singh Counsel for Respondent :- C.S.C.,K.K.Tripathi

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Hon'ble Suneet Kumar,J.

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(On C.M. Amendment Application No. 311299 of 2014)

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Application is allowed.

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Amendment to be carried out during the course of the day.

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(On Writ Petition)

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Heard learned counsel for the petitioner and learned Standing Counsel for the Staterespondent. The first and fifth respondents despite notice have not put in appearance.

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Petitioner was working as an assistant clerk at Shiv Ratan Lal Junior High School, Indurukh, Kanpur Dehat, an institution, duly recognized and in grant in aid. The provisions of Uttar Pradesh Basic Shiksha Adhiniyam, 1972, and the Rules framed thereunder is applicable.

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It is not in dispute that the petitioner was appointed clerk in the institution on 1 July 1973. It appears that petitioner was placed under suspension on 28 September 2004 pursuant to a resolution of the Committee, consequently, an enquiry officer was appointed and thereafter, a charge sheet containing 24 charges was served upon the petitioner vide letter dated 4 October 2004. It appears that petitioner though appeared before the enquiry officer, but did not participate in the enquiry, consequently, the enquiry officer submitted enquiry report holding the petitioner guilty of all the charges only for the reason that petitioner did not submit his reply. An undated

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enquiry report has been placed on record by the Management which clearly reflects that the enquiry officer has neither noticed the charges and on what basis the charges have been proved. The enquiry report merely states that since the petitioner had not filed objections to the charges, therefore, the charges no. 1 to 24 is accepted against the petitioner. Thereafter, it appears that the papers of the proceedings was sent to Basic Education Officer in terms of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules (in short 'Rules 1984'), seeking approval under Rule 21. Rule 21 mandates that without prior approval of the Basic Education Officer, the service of an employee of a recognized school, in grant in aid, cannot be terminated by the Management. It is not being disputed by the Management that the approval as mandated under Rule 21 was not obtained.

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Rule 21 of Rules 1984 is extracted:

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" 21. Termination of service.- No clerk or Group 'D' employee of a recognized school may be discharged or removed or dismissed from service or reduced in rank or subjected to any diminution in emoluments or served with notice of termination of service except with the prior approval in writing of the District Basic Education Officer:"

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This Court in Yashwant Singh Versus District Basic Shiksha Adhikari, Jhansi and others, 2003(1) E.S.C. ( ALL), 560 , dealing with a similar provision contained in Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment And Conditions Of Service Of Teachers) Rules, 1978, held that prior approval even before serving of notice for termination of service is mandatory.

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Learned counsel appearing for the petitioner further submits that Rule 23 of Rules 1984 provides for disciplinary proceeding. The rules applicable to an assistant teacher of a basic school shall apply to the staff and Group 'D' employee. Sub-clause (3) of Rule 5 of Uttar Pradesh Basic Education Staff Rules, 1973 is applicable upon the petitioner and it provides that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as

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applicable to servant of Government of U.P. shall, as far as possible, be followed in disciplinary proceedings, appeals and representation under these Rules.

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Rule 5 of Rules 1973 is extracted:

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" 5. Appeal.- An appeal shall lie from an order passed by the appointing authority in respect of the posts mentioned in column 1 of the Schedule appended to these rules, imposing upon any officer, teacher or other employee of the Board any of the penalties mentioned below, to the appellate authority mentioned in column 3 of the said Schedule:-

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(a) reduction to a lower post on time-scale or to a lower stage in a time-scale;

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(b) removal from service of the Board which does not disqualify for future employment;

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(2)....................

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(3) The procedure laid down in Civil Services (Classification, Control and Appeal) Rules, as applicable to servants of the Uttar Pradesh Government shall, as far as possible, be followed in disciplinary proceedings, appeals and representations under these rules."

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In view of Rule 5 of Rules 1973, learned counsel for the petitioner submits that enquiry officer should have returned a finding on each of the charges disclosing the material relied upon by the Management in support of the charges. All the charges levelled against the petitioner was presumed to have been proved against the petitioner merely for the reason that petitioner did not appear and submit his reply to the charges.

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In my opinion, the procedure prescribed under the Rules applicable for government servant has not been followed, therefore, the disciplinary proceedings initiated against the petitioner stands vitiated. In the mean time, petitioner retired on attaining the age of superannuation on 29 January 2008 and has not been paid the arrears of salary and post retiral dues, due to the pendency of the present writ petition.

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Petitioner by the instant writ petition seeks direction to the first respondent, District Basic Education Officer, Kanpur Dehat, to release the salary of the petitioner w.e.f. 16 March 2004 to the

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date of his retirement i.e. 29 February 2008 and thereafter to pay the post retiral dues.

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Having due regard to the fact that petitioner has superannuated and the disciplinary proceedings initiated against the petitioner for all practical purpose is no proceeding in the eye of law, in the circumstances, to remit the matter at this stage would cause great hardship to the petitioner. Further, it is not the case of the Management that they had ever pressed with the Basic Shiksha Adhikari to accord approval to the dismissal order. Management probably was aware of the fact that such an order would in no circumstances receive the approval of the BSA having due regard to the manner in which the disciplinary proceeding was conducted. The writ petition is accordingly allowed. The first respondent is directed to release the arrears of salary of the petitioner w.e.f. 16 March 2004 to the date of his retirement and, thereafter, release the pension and other post retiral dues.

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It is clarified that entire exercise shall be completed within four months from the date of receipt of certified copy of this order, failing which, petitioner shall be entitled to simple interest at the rate of 6.5% per annum from the due date i.e. 1 March 2008. In the event of the fifth respondent, Committee of Management not cooperating with the first respondent in release of the salary and pension, in that event it will be open to the first respondent to proceed against the Management in accordance with law to ensure compliance of this order.

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Order Date :- 15.3.2018 K.K. Maurya

Sant Ram Saxena v. District Basic Education Officer and Others

Case brief

What is this about?

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Sant Ram Saxena v. District Basic Education Officer and Others

Case brief

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