Dismissed

Amar Nath Dwivedi (in Person) v. State of U.P. Thru Addl.Chief Secy./Prin.Secy. Basic Education Lucknow and Ors.

Allahabad HC19 Oct 2022/320/2022

Case brief

AI extract

What is this about?

The Special Appeal was dismissed. The Division Bench upheld the Single Judge's finding that the appellant had no right to claim absorption in State Government services after the Supreme Court judgment of 2.3.2017. The court found no evidence of conscious engagement or malice by the State.

What did the court decide?

Special Appeal dismissed with agreement with the single Judge that the appellant cannot claim continuance of service and could not misappropriate the salary amount.

Amar Nath Dwivedi (in Person) Vs State of U.P. Thru… — Service and Employment | Allahabad HC (2022)

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Reserved on 6.09.2022 Delivered on 19.10.2022

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Court No. - 2

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Case :- SPECIAL APPEAL No. - 320 of 2022 Appellant :- Amar Nath Dwivedi (In Person) Respondent :- State Of U.P. Thru Addl.Chief Secy./Prin.Secy. Basic Education Lucknow And Ors.

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Counsel for Appellant :- In Person Counsel for Respondent :- C.S.C.,Ghulam Mohammad Kamil,Shobhit Mohan Shukla

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Hon’ble Devendra Kumar Upadhyaya, J. Hon'ble Shree Prakash Singh,J.

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Order on Application for Condonation of Delay

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1. Heard Sri Amar Nath Dwivedi, appellant-petitioner in person, learned State counsel for the State-respondents and Sri Shobhit Mohan Shukla, learned counsel representing the State Project Director, Sarv Shiksha Abhiyan, Uttar Pradesh and perused the averments made by the appellant-petitioner in the application seeking condation of delay.

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2. Having gone through the contents of the application moved by the appellant-petitioner seeking condonation of delay, we are satisfied that the delay has sufficiently been explained.

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3. Accordingly, the application is allowed and the delay in filing the special appeal is hereby condoned.

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Order on Special Appeal

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1. Heard Sri Amar Nath Dwivedi, appellant-petitioner in person, learned State Counsel representing the State-respondents and Sri Shobhit Mohan Shukla representing State Project Director, Sarv Shiksha Abhiyan, Uttar Pradesh and perused the records available before us on this special appeal.

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2. Under challenge in this intra court appeal filed under Chapter-VIII Rule- 5 of the Rules of the Court is the Judgment and order dated 11.5.2022 passed by the learned Single Judge whereby Writ-A No.21517

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of 2019, Writ-A No.2001629 of 2013, Writ-A No.2000200 of 2014 and Writ-A No.17420 of 2016 have been dismissed.

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3. Learned Single Judge, while passing the Judgment, which is under challenge herein, has observed that subject matter of Writ-A No.2001629 of 2013, Writ-A No.2000200 of 2014 and Writ-A No.17420 of 2016 pertains to the period prior to 2.3.2017 and since the subject matter of these writ petitions were already covered by the decision of the Hon’ble Supreme Court of the said date, i.e., 2.3.2017, these petitions would also stand dismissed along with the leading Writ-A No.21517 of 2019.

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4. By instituting Writ-A No.21517 of 2019, the appellant-petitioner had challenged three orders/letters first of which is the letter dated 1.6.2019 written by the Secretary/General Manager, Co-operative Spinning Mills Limited, Amroha to District Basic Education Officer, Office of Sarv Shiksha Abhiyan, Ghazipur. The office order dated 1.7.2019 passed by the District Basic Education Officer, Ghazipur and the order dated 25.7.2019 passed by the State Project Director, Sarv Shiksha Abhiyan, Uttar Pradesh, Lucknow were also under challenge before learned Single Judge.

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5. At this juncture itself, we may note that by means of the letter dated 1.6.2019, the Secretary/General Manager, Co-operative Spinning Mills Limited, Amroha had informed the District Basic Education Officer, Ghazipur that Hon’ble Supreme Court by means of the Judgment and order dated 2.3.2017 had set aside the orders passed by this Court in relation to the reinstatement in service of the appellant-petitioner and, accordingly, after the order dated 2.3.2017, the appellant-petitioner did not maintain any lien with the Co-operative Spinning Mills Limited, Amroha. The District Basic Education Officer by means of the office order dated 1.7.2019, which was also under challenge before the learned Single Judge in Writ-A No.21517 of 2019, relieved the appellantpetitioner from the post of Co-ordinator Training. By the said order dated

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1.7.2019, the District Basic Education Officer, Ghazipur also directed that an F.I.R. be lodged against the appellant-petitioner for embezzlement of an amount of Rs.17,71,951/- which he had drawn as salary while working in Sarv Shiksha Abhiyan by concealment of facts and misleading the Department. By the order dated 25.7.2019 passed by the State Project Director, Sarv Shiksha Abhiyan, Uttar Pradesh, which was also under challenge in Writ-A No.21517 of 2019, the appellantpetitioner was relieved from Sarv Shiksha Abhiyan and his services were also terminated.

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6. As observed above, challenging the aforesaid three orders/letters dated 1.6.2019, 1.7.2015 and 25.7.2019, the appellant-petitioner had filed Writ-A No.21517 of 2019.

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7. Learned Single Judge, while considering the detailed submissions made by the parties, has come to the conclusion while passing the Judgment and order dated 11.5.2022, which is under appeal herein, that so far as the submission made by the appellant-petitioner seeking his absorption etc. in the services of the State Government is concerned, Hon’ble Supreme Court has already adjudicated the said issue while passing the order dated 2.3.2017 and has clearly held that he does not have any such right. Learned Single Judge has also taken note of the observation made by the Hon’ble Supreme Court in the Judgment and order dated 2.3.2017 that the said order dated 2.3.2017 passed by the Hon’ble Supreme Court will not debar the State Government from engaging the appellant-petitioner. It has further been found by learned Single Judge that though the appellant-petitioner was allowed to continue to work till 25.7.2019 even after the order passed by the Hon’ble Supreme Court on 2.3.2017 and he has been paid salary as well, however, the appellant-petitioner could not show any order by which he was engaged in the services of the State Government after passing of the order by the Hon’ble Supreme Court on 2.3.2017.

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8. Learned Single Judge has also considered the submissions made by the appellant-petitioner in the writ petition to the effect that the impugned orders dated 25.7.2019 and 1.7.2019 had precipitated on account of malices. It was asserted by the appellant-petitioner before the learned Single Judge that action resulting in dispensing with his services had percipitated only on account of some enquiry, which was conducted by him in May 2019 against the then Basic Education Officer, Ghazipur. It was further asserted by the appellant-petitioner before learned Single Judge that it is only on account of the fact that he had conducted the enquiry against the District Basic Education Officer, Ghaizpur that the order dated 1.7.2019 was passed by the Basic Education Officer. Thus, the ground of mala fide was also taken by the appellant-petitioner before learned Single Judge, however, while passing the Judgment and order under appeal before us, learned Single Judge has repelled the said submission made by the appellant-petitioner by stating that the letter/order dated 1.7.2019 by the Basic Education Officer was addressed to the State Project Director, Sarv Shiksha Abhiyan and it is by means of the order dated 25.7.2019 passed by the State Project Director, Sarv Shiksha Abhiyan that the appellant-petitioner has been relieved.

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9. Learned Single Judge has also recorded a finding that the order relieving the appellant-petitioner dated 1.7.2019 was cancelled by the Additional Director, Basic Education, vide his letter dated 2.7.2019. At this juncture, we may note, at the cost of repetition, that by means of the order dated 25.7.2019, the appellant-petitioner was relieved from the services at Sarv Shiksha Abhiyan and accordingly, the issue raised by the appellant-petitioner regarding the action impugned in the writ petition being vitiated on account of malice has appropriately been dealt with and a clear finding has been recorded by the learned Single Judge that after the order dated 2.3.2017, the appellant-petitioner could not assert any right, whatsoever, either of absorption in the State Government services

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or right of his continuance in his parent Department, namely, Cooperative Spinning Mills Federation Limited.

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10. We may notice certain facts as well for appropriate adjudication of the issues involved in this special appeal. The appellant-petitioner was engaged on contractual basis by Uttar Pradesh Co-operative Spinning Mills Federation Limited by means of an order dated 7.9.1998 and the period of contractual appointment spanned from 25.9.1998 to 24.9.1999. Pursuant to the said appointment on contractual basis made on 7.9.1998, the appellant-petitioner submitted his joining in U.P. Co-operative Spinning Mills Federation Limited at its Headquarter at Kanpur on 25.9.1998. However, he was thereafter posted at Co-operative Spinning Mills Limited, Amroha by means of an order dated 6.10.1998 whereby he reported his joining at Amroha on 9.10.1998. On completion of his term of contractual appointment with U.P. Co-operative Spinning Mills Federation Limited, the services of the appellant-petitioner with the said Federation stood terminated, which was challenged by the appellantpetitioner by instituting a writ petition before this Court at Allahabad, which was dismissed by learned Single Judge by means of the order dated 17.1.2002. The appellant-petitioner challenged the said order dated 17.1.2002 passed by the learned Single Judge by instituting a special appeal before a Division Bench which was allowed and the matter was remitted to the learned Single Judge.

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11. On remand, learned Single Judge by means of his order dated 16.7.2002 allowed the writ petition filed by the appellant-petitioner, however, the said order dated 16.7.2002 passed by the learned Single Judge was challenged by the Federation in speical appeal, which was dismissed on 8.8.2006. Against the said order dated 8.8.2006 passed by the Division Bench of this Court in special appeal, the special leave petition was filed before the Hon’ble Supreme Court, which was converted in Civil Appeal No.5491 of 2007. The Civil Appeal No.5491 of 2007 has been decided by Hon’ble Supreme Court by means of an order

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dated 2.3.2017 and said Civil Appeal No.5491 of 2007 was allowed by Hon’ble Supreme Court whereby the order under challenge in the Civil Appeal was set aside.

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12. As a result of the said order dated 2.3.2017 passed by the Hon’ble Supreme Court in Civil Appeal No.5491 of 2007 so far as the claim of the appellant-petitioner relating to his continuance in his parent Department, namely, U.P. Co-operative Spinning Mills Federation Limited is concerned, the same stood concluded and appellant-petitioner, thus, cannot claim any continuation in his parent Department, namely, U.P. Co-operative Spinning Mills Federation Limited and any such claim laid by the appellant-petitioner would be in violation of the order dated 2.3.2017 passed by the Hon’ble Supreme Court in Civil Appeal No.5491 of 2007.

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13. It is also noticeable that on 2.3.2017 itself connected Civil Appeal No.3652 of 2017 arising out of S.L.P. (Civil) Appeal No.34308 of 2014 was also decided by the Hon’ble Supreme Court where the challenge was made to an order passed by this Court whereby certain direction was issued to the effect that the employees working on deputation belonging to the Public Sector undertakings were required to be protected. Hon’ble Supreme Court, while allowing the Civil Appeal No.3652 of 2017, which was filed by the State of Uttar Pradesh, observed that the respondent therein claimed to have been sent on deputation to the State of Uttar Pradesh by U.P. Co-operative Spinning Mills Federation Limited and that it was also claimed by such employees that their engagement/employment/appointment in the Federation was of permanent nature. Hon’ble Supreme Court considered the matter and allowed Civil Appeal No.3652 of 2017, as well, keeping in view the order passed on the same day, i.e., on 2.3.2017 in Special Appeal No.5491 of 2007. Thus, so far as the claim of absorption with the State Government is concerned, the claim of the appellant-petitioner stood concluded by the said order dated 2.3.2017 by the Hon’ble Supreme

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Court in Civil Appeal No.3652 of 2017. The Hon’ble Supreme Court has clearly observed in the said order dated 2.3.2017 passed in Civil Appeal No.3652 of 2017 that the claim of the appellant-petitioner that he was in permanent employment of U.P. Co-operative Spinning Mills Federation Limited and that, in that capacity, was sent on deputation falls on to ground and further that on such basis, his entitlement of absorption in the said services cannot be sustained.

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14. Along with Civil Appeal No.5491 of 2007 and Civil Appeal No.3652 of 2017, another civil appeal, namely, Civil Appeal No.3653 of 2017, which had arisen out of S.L.P. (Civil) No.1078 of 2015, was also decided by Hon’ble Supreme Court on the same day, i.e., on 2.3.207 and the order challenged in the said Civil Appeal was set aside. Hon’ble Supreme Court, however, while allowing the Civil Appeal No.3653 of 2017 has made the following observations:-

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“It may, however, be noted that even though we have held that respondent-Amar Nath Dwivedi has no locus to claim employment under the State, the State is not debarred from engaging services of respondent, if the State is so advised, on such terms and conditions, as may be found to be appropriate in accordance with law. We do not express any opinion on future course of action which State of Uttar Pradesh may adopt.”

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15. In view of the aforequoted observations made by the Hon’ble Supreme Court in its Judgment and order dated 2.3.2017 in Civil Appeal No.3653 of 2017, the question, which falls for our consideration, is as to whether the continuation of the appellant-petitioner with Sarv Shiksha Abhiyan even after 2.3.2017 will be treated to be a conscious act on the part of the State Government to have allowed the appellant-petitioner to be engaged in Sarv Shiksha Abhiyan or not.

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16. As already observed above, before learned Single Judge, the appellant-petitioner could not show any order passed by the State Government after the order of the Supreme Court dated 2.3.2017 whereby his services could have been engaged prescribing certain terms

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and conditions as observed by Hon’ble Supreme Court in the said order. We are of the considered opinion that in absence of any conscious order passed by the State Government pursuant to the order dated 2.3.2017 passed by the Hon’ble Supreme Court for engaging the services of the appellant-petitioner, he cannot claim his continuance and, as such, challenge made by him to the order of relieving dated 25.7.2019 passed by the State Project Director, Sarv Shikhsa Abhiyan fails utterly.

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17. Merely because the appellant-petitioner under some confusion was allowed to continue to work with Sarv Shiksha Abhiyan even after the order dated 2.3.2017 passed by the Hon’ble Supreme Court, it cannot be said that such a continuance will amount to conscious engagement of his services by the State Government with Sarv Shiksha Abhiyan. The Hon’ble Supreme Court in its order dated 2.3.2017 had only observed that State will not be debarred from engaging services of the respondent if the State is so advised on such terms and conditions as may be found appropriate in accordance with law. Such an observation clearly means that it was left open to the State Government to engage the services of the appellant-petitioner, which, in absecne of any express decision or order by the State Government, cannot be treated to be in existence. Accordingly, we express our agreement with the finding recorded by the learned Single Judge that since the State Government did not pass any order for engaging the services of the appellant-petitioner, he cannot claim his continuance on the strength of the order of the Hon’ble Supreme Court dated 2.3.2017.

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18. We may also note that the appellant-petitioner had filed a review petition against the order dated 2.3.2017, namely, Review Petition (C) No.1460 of 2017 in Civil Appeal No.5491 of 2007, which was dismissed by means of an order dated 25.7.2017 with the following observations:-

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“We have carefully gone through the review petition and the connected papers. However, we do not find any merit in the review petition. Accordingly the review petition is dismissed.”

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19. After dismissal of the review petition of Hon’ble Supreme Court, it would have been permissible for the appellant-petitioner to have continued in the employment of the State Government only if State would have taken a conscious decision and, accordingly, passed an order on such terms and conditions, which could have been thought appropriate for engaging the services of the appellant-peitioner. There is nothing on record which shows that State ever took any such conscious decision, as such, the claim of the appellant-petitioner for continuation to serve the State Government in Sarv Shiksha Abhiyan, in our considered opinion, is not permissible.

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20. It is also to be noticed that State Project Director while passing the order dated 25.7.2019 has provided therein that continuance of the appellant-petitioner in Sarv Shiksha Abhiyan after the Judgment of the Hon’ble Supreme Court was delivered on 2.3.2017, was based on suppression of facts and, as such, he is guilty of embezzlement of an amount of Rs.17,71,951/- The Basic Education Officer by means of the office order dated 1.7.2019 had ordered lodging of the F.I.R. against the appellant-petitioner for the alleged embezzlement of the said amount, however, after investigation of the said First Information Report, the final closure report was submitted by the Investigating Agency, which has been accepted by the court concerned.

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21. In the aforesaid background facts relating to continuance of appellant-petitioner after Judgment dated 2.3.2017, learned Single Judge has recorded a finding that one of the three civil appeals, which were decided by the Hon’ble Supreme Court by means of the Judgement and order dated 2.3.2017, was filed by the State Government, which was allowed as well and, as such, it was not open to the State Government to plead that State Government did not have any knowledge of the said order of the Hon’ble Supreme court dated 2.3.2017 and further that the appellant-petitioner cannot be said to be guilty of suppression of any fact. Learned Single Judge has also recorded a finding that all through this

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period, the appellant-petitioner has worked in Sarv Shiksha Abhiyan, hence, recovery of said amount of Rs.17,71,951/- will not be appropriate. Learned Single Judge has, thus, held that misappropriation of the amount as alleged in the order dated 25.7.2019 passed by the State Project Director, Sarv Shiksha Abhiyan, which was drawn by the appellantpetitioner towards salary, is not acceptable.

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22. We also do not find any flaw in the reasoning recorded by the learned Single Judge for not accepting the submission of the respondents that appellant-petitioner misappropriated the amount of Rs.17,71,951/which was drawn by him towards his salary for the simple reason that there cannot be any presumption that State Government was not aware of the order dted 2.3.2017 passed by the Hon’ble Supreme Court as one of the civil appeals decided by the said order was filed by the State Government itself.

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23. In respect of the ground taken by the appellant-petitioner regarding malice, learned Single Judge has recorded a finding that relieving order dated 1.7.2019 passed by the Basic Education Officer was already cancelled by the Additional Director (Basic Education) by means of his letter dated 2.7.2019 and, as such, the appellant-petitioner stands relieved not by virtue of order dated 1.7.2019 passed by the Basic Education Officer but under the order dated 25.7.2019 passed by the Project Director, Sarv Shiksha Abhiyan, State of Uttar Pradesh. In view of the aforesaid, the said submission made by the appellant-petitioner regarding the impugned action relieving him from Sarv Shiksha Abhiyan being infested with mala fide also does not appeal to us.

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24. For the discussions made and reasons given above, we are in complete agreement with the Judgment and order dated 11.5.2022 passed by the learned Single Judge whereby all the four writ petitions filed by the appellant-petitioner have been dismissed with the observation that

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appellant-petitioner cannot be said to have misappropriated the amount paid to him towards salary.

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25. We, thus, do not find any good ground to interfere with the Judgment and order passed by the learned Single Judge which is under appeal before us. The special appeal being devoid of merit is dismissed . However, no order as to costs.

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Order Date :- 19.10.2022 Ram Murti

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Judgement has been pronounced today in open Court by me under Sub-rule (2) of Rule 1 of Chapter VII of the Allahabad High Court Rules, 1952.

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(Shree Prakash Singh, J.)

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Digitally signed by RAM MURTI YADAV Date: 2022.10.21 17:19:19 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Amar Nath Dwivedi (in Person) v. State of U.P. Thru Addl.Chief Secy./Prin.Secy. Basic Education Lucknow and Ors.

Case brief

What is this about?

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Amar Nath Dwivedi (in Person) v. State of U.P. Thru Addl.Chief Secy./Prin.Secy. Basic Education Lucknow and Ors.

Case brief

What is this about?

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