Disposed

Vivek Kumar Singh v. State of U.P. and 4 Others

Allahabad HC25 May 2023WRIA/5765/2023

Case brief

AI extract

What is this about?

Petitioner challenging removal from service. Court held that efficacious alternative remedy of appeal existed under Service Rules. Writ petition disposed of, directing petitioner to file appeal, with stay on salary recovery pending its decision.

What did the court decide?

Petitioner directed to file appeal under Section 5(3) of Rules within two weeks. Reprieve from salary recovery for four months or until appeal decision.

Vivek Kumar Singh Vs State of U.P. and 4… — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:117288

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Court No. - 36

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Case :- WRIT - A No. - 5765 of 2023

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Petitioner :- Vivek Kumar Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Bhriguram Ji,Sandip Kumar,Shashi Shekhar Maurya

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Counsel for Respondent :- C.S.C.,Jay Ram Pandey,Sunil Kumar Dubey

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Hon'ble Ashutosh Srivastava,J.

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Heard learned counsel for the petitioner and Shri Vikas Rastogi under the authority of Shri Sunil Kumar Dubey, learned counsel representing the respondent nos. 2 to 4. 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 Taktaiya Block Rajgarh, District Mirzapur, has approached this Court seeking issuance of a writ of certiorari quashing the order dated 23.2.2023 passed by the District Basic Education Officer, Mirzapur whereby, the services of the petitioner as Assistant Teacher has been dispensed with.

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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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Shri Vikas Rastogi under the authority of Shri Sunil Kumar Dubey, 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 respondents are proceeding to make recovery of the salary paid to the petitioner since the year of joining on the post of Assistant

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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 23.2.2023 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 23.2.2023 passed by the District Basic Education Officer, Mirzapur.

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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

Vivek Kumar Singh v. State of U.P. and 4 Others

Case brief

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Vivek Kumar Singh v. State of U.P. and 4 Others

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