RADHEY SHYAM VISHWAKARMAversusState of UP AND 4 OTHERS

         HIGH COURT OF JUDICATURE AT ALLAHABAD
                       WRIT - A No. - 7143 of 2024

Radhey Shyam Vishwakarma
                                                          .....Petitioner(s)
                                  Versus

State Of Up And 4 Others
                                                        .....Respondent(s)

Counsel for Petitioner(s)         :   Murali Manohar, S.K. Srivastava
Counsel for Respondent(s)         :   C.S.C.

Court No. - 6
                HON'BLE SIDDHARTH NANDAN, J.

1. Heard Mr. Murali Manohar, learned counsel appearing on behalf of the
petitioner, and learned Standing Counsel for the respondents Nos. 1 to 4.
Despite service of notice upon respondent No. 5, no one has put in
appearance on his behalf.
2. By way of present writ petition the petitioner has assailed the order
dated 05.04.2024 passed by the Regional Level Committee, Region
Varanasi, Varanasi and Joint Director of Education, Region Varanasi,
Varanasi, whereby his claim for regularization under Section 33-F of the
U.P. Secondary Education Services Selection Board Act, 1982
(hereinafter referred to as the “Act, 1982”), has been rejected.
3. Learned counsel for the petitioner submits that the petitioner was
appointed in the institution on the post of Assistant Clerk on 04.12.1973;
but however, subsequently, after resigning from the post of Assistant
Clerk, in accordance with the prescribed procedure, he was appointed on
the post of Assistant Teacher on 20.07.1992; pursuant to the resolution
dated 28.06.1992 passed by the Committee of Management under the
provisions of the U.P. Secondary Education Services Commission
(Removal of Difficulties) (Second) Order, 1981; and he joined on the said
post on 20.07.1992; he has also brought on record various letters of the
Manager clarifying that only after resigning from the post of Assistant
Clerk, the petitioner has joined as Assistant Teacher on 20.07.1992;
hence, the Manager has requested the District Inspector of Schools
(DIOS) to grant approval and release his salary with effect from
15.06.1993; which was eventually also granted by order dated
17.08.2006.
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4. It is further submitted that there was an ongoing seniority dispute with
respect to one Shri Udal Prasad, who was an ad-hoc appointee to the post
of Head Master; however, the said dispute was eventually resolved and he
was held to be the senior-most teacher and approval was also granted by
the DIOS for his appointment to the post of Head Master, with effect from
01.07.1992 vide order dated 23.03.1999, which has not been disputed by
the respondents.
5. However, since his claim was not being considered under Section 33-F
of the Act, 1982, he approached this Court by filing Writ-A No. 27726 of
2018 and this Court by its judgment dated 19.01.2024; after observing
that the petitioner having been appointed on 20.07.1992 against a short-
term vacancy on the post of Assistant Teacher (L.T. Grade), in the
Institution, was paid salary pursuant to the orders of the Additional
Director of Education, (Secondary), dated 06.03.2006, directed that the
claim for regularization under Section 33-F of the Act, 1982, forwarded
by the Manager of the Institution to the DIOS, be placed before the
competent authority and the Regional Joint Director of Education, shall
take a decision in the matter. For ready reference, the relevant extract of
the judgment dated 19.01.2024 is reproduced herein below:-
     2. Petitioner, who was appointed on 20th July, 1992, against a
     short term vacancy of Assistant Teacher in the L.T. Grade in the
     institution came to be paid salary under the order of Regional
     Joint Director of Education (Secondary) on 6th March, 2006, in
     which he had returned a finding to this effect that the petitioner
     had been lawfully appointed and, therefore, payment of his
     salary should be given to him. It appears that the petitioner was
     appointed on account of promotion of one Udal Prasad as
     Head Master of the institution in the year 1992, but approval to
     his position as head master of the institution, came to be
     granted only in the year 1998. Petitioner did continue against
     the said vacancy, which continued to be a short term vacancy
     but payment of salary was made to him only after the order of
     Additional Joint Director of Education (Secondary) dated 6th
     March, 2006. Petitioner claims regularization in view of the
     provisions as contained under Section 33 F of the U.P.
     Secondary Education Service Selection Board Act, 1982 (for
     short 'the Act'). It also transpires from the record that the
     papers for the purposes of regularization of the petitioner, have
     been forwarded by the Manager of the institution to the District
     Inspector of Schools to be placed before the competent
     authority on 04.01.2017 but no decision has been taken in the
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     matter.
6. Learned counsel for the petitioner further submits that after approval
was granted by the DIOS in favour of Sri Udal Prasad, on the post of
Head Master with effect from 01.07.1992; it cannot be disputed that the
petitioner was not working on the post of Assistant Teacher since
20.07.1992; and merely because of the dispute regarding salary, which
otherwise he was entitled to receive, and the same not being paid to him,
it cannot be said that he was not working as an Assistant Teacher, though
approval was ultimately granted vide order dated 17.08.2006. Therefore,
the petitioner was entitled to be regularized under the Government Order
dated 30.12.2000, w.e.f. his initial date of appointment i.e. 20.07.1992.
7. He has also placed reliance upon the order dated 06.03.2006; to
contend that the petitioner was appointed against the post vacated by Sri
Udal Prasad. The relevant extract of the order dated 06.03.2006 is also
reproduced hereinbelow:-
     "प्रश्नगत प्रकरण में स्पष्ट है कि श्री विश्वकर्मा की नियुक्ति सहायक अध्यापक के
     पद पर श्री उदल प्रसाद की पदोन्नति से हुई रिक्ति के प्रति हुई है और श्री उदल
     प्रसाद को माननीय उच्च न्यायालय के आदेश से वेतन भुगतान कतिपय प्रतिबन्धों
     के अधीन किया जा रहा है और प्रधानाचार्य पद पर विनियमित हो चुके हैं। श्री उदल
     प्रसाद की पदोन्नति से रिक्त पद पर श्री विश्वकर्मा विधिवत नियुक्त है जिससे वेतन
     भुगतान में कोई विधिक कठिनाई नहीं है।"
8. Furthermore, he submits that a perusal of the order dated 23.03.1999,
also makes it evident that the resolution dated 28.06.1992 was passed in
favour of Sri Udal Prasad and he was even granted salary on the post of
Head Master with effect from 01.07.1992.
9. In the background of the aforesaid admitted facts, learned counsel for
the petitioner submits that the finding recorded in the impugned order to
the effect that the petitioner continued to work as Assistant Clerk up to
16.08.2006, is apparently contrary to the evidence on record.
10. It is further submitted that the finding that the appointment of the
petitioner on the post of Assistant Teacher (L.T. Grade) with effect from
20.07.1992 was erroneous, is also contrary to the evidence on record; and,
in fact, contrary to the finding returned by this Court in Writ-A No. 27726
of 2018.
11. Per contra, learned Standing Counsel appearing on behalf of
respondents Nos. 1 to 4 submits that on account of the retirement of Sri
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Ishwar Prasad, Head Master on 30.06.1992, the said post fell vacant,
against which Sri Udal Prasad, Assistant Teacher (L.T. Grade), was
promoted as ad-hoc Head master; and on account of the said promotion, a
short-term vacancy on the post of Assistant Teacher (L.T. Grade) was
caused in the Institution, and the Committee of Management, without
following the prescribed procedure, filled up the said ad-hoc vacancy by
appointing the petitioner on 20.07.1992.
12. However, he has not disputed the fact that this Court, in its previous
judgment in Writ-A No. 27726 of 2018, had examined the petitioner’s
appointment and while referring to the order dated 06.03.2006 had
recorded a finding that the petitioner had been lawfully appointed and,
therefore, was entitled to payment of salary. It is also not the case of the
respondents that the petitioner was not appointed against a permanent
vacancy.
13. Since the entire impugned order dated 05.04.2024 has been passed on
the premise that the petitioner had continued to work on the post of
Assistant Clerk and was paid salary up to 16.08.2006, commensurate to
the post of Assistant Clerk; therefore the presumption raised that he only
discharged the service of an Assistant Teacher with effect from
17.08.2006, being absolutely erroneous; and in view of the fact that the
vacancy existed as on 20.07.1992, for the post of Assistant Teacher and in
the order dated 06.03.2006 also the said fact was acknowledged by the
Additional Director of Education (Secondary), Uttar Pradesh, the very
basis of the impugned order is faulty and at this stage it could not have
been disputed that the petitioner was not working on the post of Assistant
Teacher since 20.07.1992; and it was also not open to the concerned
authorities to examine the validity of the appointment of the petitioner,
which was made as long back as in the year 1992.
14. This Court is also of the opinion that the said issue was already settled
by the observations made in the order dated 19.01.2024 passed in Writ
No. 27726 of 2018 (Radhey Shyam Vishwakarma vs. State of U.P. and 5
others), as held herein above; and in such view of the fact, the impugned
order dated 05.04.2024 cannot be sustained in the eyes of law and is
accordingly set aside; with a direction upon the authorities to consider the
regularization of the services of the petitioner on the post of Assistant
Teacher (L.T. Grade), since his initial date of appointment that is
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                                    20.07.1992, on which post the petitioner worked till his date of retirement
                                    and as contemplated in the provisions of law, within a period of one
                                    month from the date of service of certified copy of this order; and
                                    thereafter pay the regular pension and all retirement benefits payable to
                                    the petitioner under the rules, further within a period of one month from
                                    the date of passing of the order, according consideration for regularizing
                                    the services of the petitioner on the post of Assistant Teacher (L.T.
                                    Grade), as directed herein above.
                                    15. With the aforesaid observations and directions, the writ petition stands
                                    allowed.


                                                                                        (Siddharth Nandan,J.)
                                    September 10, 2026
                                    S.Prakash




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