WPSS/1119/2010 of VED PRAKADH JOSHI Vs STATE OF UTTARAKHAND and OTHERS on 29 December 2011

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition No.1119 of 2010 (S/S)

Ved Prakash Joshi

………..Petitioner

Versus

State of Uttarakhand & others

…….Respondents

Shri J.C. Pandey, learned counsel for the petitioner. Shri N.P. Sah, learned Standing Counsel for the State of Uttarakhand/respondent nos.1 to 3. Smt. Beena Pandey, learned Standing Counsel for the State of Uttar Pradesh/ respondent no.4.

Hon’ble V.K. Bist, J.

Dated: 29[th] December, 2011

Heard learned counsel for the parties.

2. Petitioner joined as Assistant Teacher vide appointment letter dated 16.08.1971, in Government Inter College, Gangolihat, Pithoragarh. Thereafter, vide order-dated 02.11.1983, the petitioner was removed from services. Aggrieved by the said order, the petitioner filed Writ Petition No.129 of 1984 before the Allahabad High Court. The same was allowed on 16.09.1997 and the order of termination-dated 02.11.1983 was quashed. The Court directed Deputy Director of Education to pass appropriate order on the representation of the petitioner made against the adverse entries for the year 1979-80 within one month from the date of production of a certified copy of the order. It was also directed that after the decision of the Deputy Director of Education on the representation of the petitioner is obtained, the Selection Committee constituted for the purpose of regularization of services, shall be constituted afresh. It was further directed that while considering the matter of regularization of the petitioner, the adverse entries, which stood against the petitioner prior to 07.11.1979, shall not be taken into consideration and the proceedings relating to consideration of the case of the petitioner for regularization of his services, shall be decided by the Selection Committee again within a period of one month from the date of decision of the Deputy Director of Education on the representation of the petitioner against the adverse entry for the year 1979-80 is made available to the committee. Thereafter, committee considered the representation of the petitioner and the adverse entry of the petitioner for the year 1979-80 was expunged by the Joint Director of Education, Kumaon Nanitial. On the basis of the recommendation of the Selection Committee, the Additional Director of Education, Uttar Pradesh passed an order on 10[th] August, 1998, regularizing the services of the petitioner on the post of Lecturer English in the pay scale of ` 1,600-2,660. The Additional Director of Education (Uttarakhand) Uttar Pradesh further ordered that petitioner shall not be entitled for salary for the period, he was out of service. In the said order, the Additional Director of Education (Uttarakhand) Uttar Pradesh also observed that the seniority of the petitioner shall be determined later on. In the order dated 10[th] August, 1998, though the Additional Director of Education (Uttarakhand) Uttar

Pradesh regularized the services of the petitioner, but it was not mentioned in the order that from which date, the services of the petitioner were regularized. Since, the back wages were not paid to the petitioner, he moved Contempt Petition no.3797 of 1998 before the Allahabad High Court, which was decided on 19.02.2004, observing that petitioner was entitled for arrears of salary from the date of his termination to the date of his reinstatement in service. The respondent authorities were directed to release the arrears of salary of the petitioner within a period of six weeks from that day. The order dated 19.02.2004 passed by the Allahabad High Court in Contempt Petition no.3797 of 1998 was challenged by the respondents before the Hon’ble Supreme Court in Civil Appeal No.37/3 of 2005. The same was allowed on the ground that Contempt Court has no jurisdiction to exceed its jurisdiction. It is only for the Writ Court, which could have passed order for payment of salary for the period mentioned in the order. The Hon’ble Supreme Court observed that if the petitioner has any grievance so far as order dated 10.08.1998 is concerned, denying him the arrears of salary, he may, if so advised, approach the appropriate forum for said remedy, as is available in law. Thereafter, the petitioner filed a Writ Petition no.1124 of 2005 before this Court, challenging the order dated 10.08.1998 in part only to the extent by which payment of arrear of back salary to the petitioner from the date of termination till the date of reinstatement i.e. from 02.08.1983 to 10.08.1993, was denied. The same is pending. Thereafter, the petitioner filed another writ petition no.1932 of 2005 (S/S) before this Court for fixing seniority of the petitioner w.e.f. 26.08.1971 and for considering the claim of the petitioner for promotion on the post of Principal. The same was allowed on 19.12.2008. The Hon’ble Single Judge of this Court held that services of the petitioner are liable to be treated as regularized from the year 1983 under the relevant Rules. It was directed that petitioner shall be treated to have been regularized in the service in the year 1983. The Hon’ble Single Judge further directed to fix inter-se seniority of the petitioner treating him to be regularized from the year 1983.

3. Inspite of the aforesaid facts and inspite of the fact that positive direction was issued by this Court in Writ Petition no.1932 of 2005 (S/S) to treat the petitioner regularized w.e.f. 1983, the respondents have not granted benefit to the petitioner including the increment for which the petitioner was entitled from the year 1983. In the meantime, petitioner also retired from the service on 30.06.2009.

4. The submission of the learned counsel for the petitioner is that competent authority has illegally ignored the period from the date of removal to the date of reinstatement i.e. from 02.11.1983 to 27.08.1998, for calculating the qualified service for fixing the pension of the petitioner. He further submitted that the period from dismissal to reinstatement i.e. from 02.11.1983 to 26.08.1998, is being counted for granting the selection grade and fixing seniority and promotion, the same period cannot be ignored by the authority for counting the length of service for the purpose of fixation of salary, pension and gratuity.

5. Learned Standing Counsel for the respondents submitted that in compliance of the order passed by this Court, the petitioner has been granted notional promotion. The respondents have, infact, considered the services of the petitioner from 02.08.1983 and by doing so, the service pension has also been sanctioned and given to him. The notional promotion has been given to the petitioner w.e.f 5[th] September, 2006 vide order no.306 dated 30.06.2009 passed by the Director of School Education, Uttarakhand.

6. I have considered the submissions of the learned counsel for the parties.

7. I think that in view of the order passed by this Court on 19.12.2008 in Writ Petition no.1932 of 2005 (S/S), in which direction was given to the respondents to treat the services of the petitioner regularized in the year 1983 under the relevant Rules and to fix the inter-se seniority of the petitioner by treating him to be regularized from the year 1983, financial benefits could not be denied to the petitioner from 02.08.1983. I, therefore, direct the respondents to revise the salary of the petitioner w.e.f. 02.08.1983, treating him regularized from that day and make payment of difference of arrear of salary to the petitioner w.e.f. 27.08.1998 till 30.06.2009, within a period of six months from the date of production of a certified copy of the order. The respondents are also directed to revise pension as well as gratuity of the petitioner on the basis of revised salary and also pay the difference of arrears to him within the same period.

8. With the above direction, the writ petition is disposed of.

Arpan

(V.K. Bist, J.)

29.12.2011