Allowed

Rajiv Kumar Mishra v. State of U.P. Thru. Prin. Secy. Deptt. of Basic Edu. Lko and 3 Others

Allahabad HC10 Dec 2024WRIA/11803/2024

Case brief

AI extract

What is this about?

The Court allowed a writ petition challenging a removal order passed by the Basic Shiksha Adhikari, Hardoi, without complying with a prior writ directive. The Court found the removal order invalid, quashed it, and directed an inquiry into the Adhikari's malicious conduct for defying the writ court's payment order.

What did the court decide?

The writ petition was allowed. The impugned removal order dated 10.04.2024 is quashed. An inquiry is directed against the Basic Shiksha Adhikari, and he is restrained from duty pending the inquiry.

Rajiv Kumar Mishra vs State of U.P. Thru. Prin… — Service and Employment | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:84462

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Court No. - 5

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Case :- WRIT - A No. - 11803 of 2024 Petitioner :- Rajiv Kumar Mishra Respondent :- State Of U.P. Thru. Prin. Secy. Deptt. Of Basic Edu. Lko And 3 Others

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Counsel for Petitioner :- Vijay Kumar Srivastava,Gyanendra Nath Counsel for Respondent :- C.S.C.,Prashant Kumar Singh,Ran Vijay Singh

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Hon'ble Abdul Moin,J.

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1. Heard learned counsel for the petitioner, Shri P. K. Singh, learned Additional Chief Standing Counsel for the respondent no. 1, Shri Ran Vijay Singh, learned counsel for the respondents no. 2 and 3 and Shri Prashant Kumar Singh, learned counsel for the respondent no. 4.

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With the consent of learned counsel appearing on behalf of the contesting parties, the instant writ petition is being finally decided.

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3. Learned counsels for the contesting parties state that the facts of the case have already been indicated in detail in order dated 10.12.2024, which for the sake of convenience, is reproduced below:

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"Heard.

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Under challenge is the removal order dated 10.04.2024, a copy of which is annexure 1 to the writ petition as served on the petitioner by the learned counsel appearing on behalf of the Basic Shiksha Adhikari on 18.11.2024 as emerges from a perusal of the order passed in Writ-A No. 8840 of 2024 dated 18.11.2024 (page 19).

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Of the many grounds as have been urged by the learned counsel for the petitioner while raising a challenge to the aforesaid order one ground is that in an earlier round of litigation preferred by the petitioner vide Writ-A No. 1575 of 2022 Inre;Rajiv Mishra Vs. State of U.P and Ors, the writ Court vide judgment and order dated 18.04.2022, a copy of which is annexure 13 to the writ petition had specifically provided that a final order shall be passed by the disciplinary authority only after subsistence allowance is actually paid to the petitioner. Further it was directed that the subsistence allowance to be

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paid within next one month and thereafter fresh order shall be passed by the Basic Shiksha Adhikari/disciplinary authority.

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When the said order was not complied with, the petitioner was constrained to file another writ petition namely Writ-A No. 8677 of 2023 Inre; Rajiv Kumar Mishra Vs. State of U.P and Ors and on 07.11.2023, learned counsel appearing on behalf of the Basic Shiksha Adhikari had stated that the entire arrears as due to the petitioner towards the subsistence allowance would be paid within four weeks and regular allowance would also be paid to the petitioner. After recording the said statement, the writ petition had been disposed of. Now, as per the specific averment made in paragraph 45 of the writ petition it is contended that no subsistence allowance has been paid to the petitioner and despite that, the removal order dated 10.04.2024 has been passed by the competent authority which is in violation of the order of the writ Court dated 18.04.2022 and in violation of the statement of the learned counsel for the Basic Shiksha Adhikari as recorded in the order dated 07.11.2023.

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Learned counsel for the petitioner also argues that there is a peculiar aspect of the matter inasmuch as on the one hand, the subsistence allowance had not been paid to the petitioner and the order impugned dated 10.04.2024 had been passed as communicated to the learned counsel for the petitioner on 18.11.2024 and on the other hand, the same Basic Shiksha Adhikari had earlier sent a letter dated 24.04.2024, a copy of which is annexure 21 to the writ petition to the Secretary, Basic Shiksha Parishad seeking guidelines by contending that despite the order of the writ Court for payment of the subsistence allowance and arrears thereof, the subsistence allowance has only been paid up to 31.03.2023 with the result that the petitioner has been constrained to file a Contempt Application No. 4587 of 2023 which is pending.

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Contention is that once the Basic Shiksha Adhikari vide letter dated 24.04.2024 was sending a letter seeking guidelines then as to why in the said letter, he has not indicated about the petitioner having already been removed from service vide order dated 10.04.2024 which thus gives rise to the presumption that the order impugned dated 10.04.2024 is a back dated order.

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Let the learned counsel for the Basic Shiksha Adhikari obtain

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specific instructions on the aforesaid aspects of the matter within a week.

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List this case in the next week as fresh.

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While seeking instructions, learned counsel for the Basic Shiksha Adhikari would also obtain as to whether the Basic Shiksha Adhikari who has passed the order impugned dated 10.04.2024 is the same Basic Shiksha Adhikari who sent the letter dated 24.04.2024."

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4. From the perusal of aforesaid it emerges that the petitioner is aggrieved by removal order dated 10.04.2024, a copy of which is annexure 1 to the writ petition, passed by the Basic Shiksha Adhikari, Hardoi. The order also records that the writ court in Writ A No. 1575 of 2022 in re: Rajiv Mishra Vs. State of U.P and Ors vide judgement and order dated 18.04.2022, a copy of which is annexure 13 to the writ petition, has specifically provided that final order shall be passed by the disciplinary authority only after subsistence allowance has actually been paid to the petitioner. It was further directed that subsistence allowance would be paid within next one month and thereafter fresh order shall be passed by the Basic Shiksha Adhikari / disciplinary authority.

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5. The argument of learned counsel for the petitioner as recorded in the order dated 10.12.2024 is that despite the removal order being dated 10.04.2024 yet as per the specific averment made in paragraph 35 of the writ petition no subsistence allowance to the petitioner was paid yet the removal order was passed whereby rendering the said order in gross violation of judgement and order dated 18.04.2022 passed by the writ court and thus vitiating the order impugned .

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6. It has also been argued that on the one hand that no subsistence allowance was paid to the petitioner and on the

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other hand, the same Basic Shiksha Adhikari had sent a letter dated 24.04.2024, a copy of which is annexure 21 to the writ petition, subsequent to the removal order to the Secretary, Basic Shiksha Parishad seeking guidelines by contending that despite the order of the writ court for payment of subsistence allowance and arrears thereof the subsistence allowance has only been paid upto 31.03.2022 which is indicative of the fact that no subsistence allowance was paid to the petitioner prior to the removal order.

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7. The contents of the aforesaid letter are themselves indicative of the fact that despite the order of the writ court dated 18.04.2022 of passing a final order only after payment of subsistence allowance, no subsistence allowance has been paid to the petitioner which thus vitiates the order impugned and is also indicative of the fact that despite the same Basic Shiksha Adhikari having written letter dated 24.04.2024 yet he had the audacity of passing the order of removal dated 10.04.2024 which itself reflects colourable exercise of power by the Basic Shiksha Adhikari despite specific order passed by the writ court.

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It is also indicated that undertaking had been given by learned counsel appearing for the Basic Shiksha Adhikari on 07.11.2023 for payment of subsistence allowance, yet even the said undertaking given before the writ court has been violated. Copy of the order dated 07.11.2023 is annexure 16 to the writ petition.

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9. Shri Prashant Kumar Singh, learned counsel for the respondent no. 4, on the basis of instructions sent by the Basic Shiksha Adhikari dated 16.12.2024 states that subsistence allowance has been paid to the petitioner for the period from 06.02.2020 to 31.03.2022 on 07.05.2022 and subsequent thereto no subsistence allowance has been paid to the petitioner for which guidance has been sought from Basic Shiksha Parishad

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vide letter dated 24.04.2024.

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10. Thus it emerges that admittedly no subsistence allowance has been paid to the petitioner since April 2022 right upto the passing of impugned removal order dated 10.04.2024 and despite a specific order passed by the writ court of passing of an order only after payment of subsistence allowance the removal order was passed and the Basic Shiksha Adhikari, Hardoi has had the audacity to seek guidelines from Basic Shiksha Parishad regarding payment of subsistence allowance subsequent thereto which itself reflects gross disobedience, deliberate and wilful disobedience and defiance of the order passed by the writ court and having passed removal order without complying with the order passed by the writ court which thus makes the removal order to have been passed in colourable exercise of power vested with the Basic Shiksha Adhikari.

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11. Considering the aforesaid, the writ petition is allowed . The order impugned dated 10.04.2024, a copy of which is annexure 1 to the writ petition, is quashed.

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12. Consequences to follow.

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13. At this stage, the Court may observe the conduct of the Basic Shiksha Adhikari, Hardoi as already indicated above.

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14. The aforesaid conduct is prima facie malicious and patently amounts to sitting over the order passed by the writ court which incidentally has attained finality. Once an order has been passed by the writ court specifically directing the payment of subsistence allowance and for passing of an order only after payment of subsistence allowance which admittedly has not been paid by the competent authority which is the Basic

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Shiksha Adhikari yet the Basic Shiksha Adhikari is seeking guidelines from Basic Shiksha Parishad regarding payment of subsistence allowance to the petitioner.

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15. Once there was a specific order of the writ court which has attained finality the competent authority, in this case the Basic Shiksha Adhikari, was required to comply with the order in letter and spirit and there was no occasion for passing of the removal order without complying with the order passed by the writ court. Thus, it is prima facie apparent that the removal order has been passed in a malicious manner indicating colourable exercise of power by the Basic Shiksha Adhikari.

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16. Accordingly, let an inquiry be conducted by the State Government regarding the aforesaid. The inquiry be conducted and completed in accordance with law within a period of three months from the date of receipt of a certified copy of this order. Till such time the inquiry is completed, no duty be assigned to the Basic Shiksha Adhikari, Hardoi for which suitable orders be passed by the competent authority within a week from today with liberty to place the Basic Shiksha Adhikari under suspension. This order would also be placed in the service record of the Basic Shiksha Adhikari, Hardoi.

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17. The final order passed in the inquiry against the Basic Shiksha Adhikari, Hardoi shall be submitted to this court within four weeks of final order being passed in this regard for which purpose the writ petition would be listed on 09.04.2025.

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18. In case the said order is not submitted then the Court may be constrained to summon the Principal Secretary, Basic Education, Government of U.P. to appear in person along with records.

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As an abundant precaution it is indicated that the aforesaid order for action against the Basic Shiksha Adhikari would be against the same Basic Shiksha Adhikari, Hardoi who passed the removal order dated 10.04.2024.

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Order Date :- 17.12.2024 J. K. Dinkar

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Digitally signed by :- JESHU KUMAR DINKAR High Court of Judicature at Allahabad, Lucknow Bench

Rajiv Kumar Mishra v. State of U.P. Thru. Prin. Secy. Deptt. of Basic Edu. Lko and 3 Others

Case brief

What is this about?

What did the court decide?

Rajiv Kumar Mishra v. State of U.P. Thru. Prin. Secy. Deptt. of Basic Edu. Lko and 3 Others

Case brief

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