Dismissed

Mohd. Tayyab v. State of U.P. and 3 Others

Allahabad HC25 May 2023WRIA/5293/2023

Case brief

AI extract

What is this about?

Petitioner challenged removal and salary recovery orders under a writ of certiorari. The High Court held an alternative appeal remedy existed and dismissed the writ, directing the petitioner to file an appeal and restraining recovery pending the outcome.

What did the court decide?

Petitioner directed to file appeal within two weeks; recovery of salary restrained for four months pending appeal decision.

Mohd. Tayyab Vs State of U.P. and 3 Others — Service and Employment | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:117635

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Court No. - 36

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Case :- WRIT - A No. - 5293 of 2023

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Petitioner :- Mohd. Tayyab Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Satyendra Chandra Tripathi,Rajesh Shukla Counsel for Respondent :- C.S.C.,Archana Singh,Akansha Sharma

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Vinod Kumar Singh under the authority of Shri Satyendra Chandra Tripathi, learned counsel for the petitioner, Smt. Akansha Sharma, learned counsel for respondent Nos. 3 & 4 and Smt. Archana Singh, learned counsel for respondent No. 2. Learned Standing Counsel has accepted notice on behalf of the State-respondent No. 1.

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The petitioner, who was appointed as Assistant Teacher in Primary School Masevi Rasoolpur, Block Kundarki, district Moradabad, has approached this Court seeking issuance of a writ of certiorari quashing the order dated 21.12.2022 passed by the District Basic Education Officer, Moradabad whereby, the services of the petitioner as Assistant Teacher has been dispensed with and order for recovery of salary has been passed.

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Learned counsel for the petitioner vehemently argued that the impugned order suffers from the vice of illegality inasmuch as the petitioner being a confirmed employee was required to be subjected to the provisions of the U.P. Basic Education (Staff) Service Rules, 1973 read with U.P. government Servant (Discipline & Appeal) Rules, 1999. The procedure prescribed under the said Rules have not been followed.

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Smt. Akansha Sharma and Smt. Archana Singh, learned counsel representing the respondents submits that the petitioner has been inflicted with the major penalty of removal from service and the said order is appealable under the U.P. Basic Education (Staff) Service Rules, 1973, before the Secretary, U.P. Basic Education Prayagraj, and the petitioner having an efficacious alternative remedy this Court need not interfere with the impugned order, at this stage.

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Faced with the aforesaid, learned counsel for the petitioner submits that the petitioner may be permitted to avail the remedy of filing an Appeal under Rule 5 (3) of the Rules and since the

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respondents are proceeding to make recovery of the salary paid to the petitioner since the year of joining on the post of Assistant Teacher, protection may be granted by this Court till the Appeal is decided.

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Admittedly, the petitioner has an efficacious alternative remedy of filing an Appeal against the order dated 21.12.2022 and since disputed questions of fact have been agitated in this writ petition, the Court is of the opinion that it would be appropriate to relegate the petitioner to avail the alternative remedy of filing an appeal before the Appellate Authority i.e. Secretary, Board of Basic Education, Prayagraj. Accordingly, this writ petition is disposed of requiring the petitioner to file an appeal under Section 5 (3) of U.P. Basic Education (Staff) Services Rules, 1973 within two weeks from today.

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In the eventuality of filing the Appeal by the petitioner, within the time allowed by this Court, the Appellate Authority, i.e. Secretary, Board of Basic Education, Prayagraj, shall proceed to entertain the appeal and decide the same on merits and shall not reject the same on the ground of limitation. The Appeal shall be decided by the Appellate Authority, within three months from the date of filing of the said Appeal.

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Considering the submissions advanced by the learned counsel for the petitioner, it is provided that for a period of four months from today, or till the decision in Appeal, whichever is earlier, the respondents are restrained from making any recovery from the petitioner, pursuant to the impugned order dated 21.12.2022 passed by the District Basic Education Officer, Moradabad.

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If the appeal is not filed, by the petitioner within the time allowed, the protection granted in this order shall not be available to the petitioner and it shall be open for the respondents to proceed with the recovery.

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Order Date :- 25.5.2023 Ravi Prakash

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Mohd. Tayyab v. State of U.P. and 3 Others

Case brief

What is this about?

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Mohd. Tayyab v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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