# Akhilesh Kumar Upadhyay v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 944
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-08
- **Case number:** Writ-A No. 45161 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/akhilesh-kumar-upadhyay-v-state-of-u-p-ors-46142
- **Pages:** 6

## Headnote

Law-Petitioner-appointment
on
compassionate
ground-terminated
on
account of respondents confounding his
father's name with that of another teacher -
who
was
his
father's
namesake-The
disassociation of Petitioner from 1992 until
2010 to be treated as effaced-therefore
entitled for benefit of G.O. dated 01.02.2000
reckoning his appointment as an untrained
teacher-Petitioner entitled to pay scale of
trained teacher counting 5 years servive
from joining duty.

W.P. allowed with cost. (E-7)

## Text

944 INDIAN LAW REPORTS ALLAHABAD SERIES
authenticity of such computerized copy of
the order from the official website of High
Court
Allahabad
and
shall
make
a
declaration of such verification in writing

8. It may be observed that in the event
of any breach of the aforesaid conditions,
the court below shall be at liberty to
proceed for the cancellation of applicant's
bail.

9. It is clarified that the observations,
if any, made in this order are strictly
confined to the disposal of the bail
application and must not be construed to
have any reflection on the ultimate merits
of the case.
----------
(2021)01ILR A944
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.12.2020

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 45161 of 2017

Akhilesh Kumar Upadhyay ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prabhakar Awasthi, Sri Dharmendra
Kumar Dwivedi

Counsel for the Respondents:
C.S.C., Sri Mrigraj Singh

Civil
Law-Petitioner-appointment
on
compassionate
ground-terminated
on
account of respondents confounding his
father's name with that of another teacher -
who
was
his
father's
namesake-The
disassociation of Petitioner from 1992 until
2010 to be treated as effaced-therefore
entitled for benefit of G.O. dated 01.02.2000
reckoning his appointment as an untrained
teacher-Petitioner entitled to pay scale of
trained teacher counting 5 years servive
from joining duty.

W.P. allowed with cost. (E-7)

(Delivered by Hon'ble J.J. Munir, J.)

1. This writ petition is directed against
an order dated 05.07.2017 passed by the
Basic Shiksha Adhikari, Jaunpur, by which
the Basic Shiksha Adhikari has refused to
extend benefit of the Government Order
dated 01.02.2000 to the petitioner, entitling
him to salary of a trained teacher, upon
completion of five years service.

2. Parties have exchanged affidavits.

3. Admit.

4. Heard forthwith.

5. Heard Mr. Dharmendra Kumar
Dwivedi, learned Counsel for the petitioner,
Mr.
Mrigraj
Singh,
learned
Counsel
appearing on behalf of respondent nos.3 and
4 and Mr. Sriprakash Singh, learned Standing
Counsel, appearing for respondent nos.1 and
2.

6. The petitioner's father was a
Headmaster, posted at Prathmik Vidyalaya,
Bhikharipur, Block Sujanganj, District
Jaunpur. He died in harness on 05.09.1974.
The petitioner applied for compassionate
appointment, under the Dying-in-Harness
Rules applicable. It is common ground
between parties that the petitioner was
appointed as Assistant Teacher (Primary),
under the Dying-in-Harness Rules vide
order dated 29.10.1991. He was posted to
Prathmik
Vidyalaya,
Kailwal,
Block
Maharajganj,
District
Jaunpur.
The
petitioner joined on 01.11.1991.
1 All. Akhilesh Kumar Upadhyay Vs. State of U.P. & Ors.
945

7. It is asserted that on the basis of
some false complaint that the petitioner had
secured his appointment, relying on false
documents, the petitioner's services were
terminated by the Basic Shiksha Adhikari
vide order dated 18.02.1992. This order of
termination
was
challenged
by
the
petitioner before this Court by means of
Civil Misc. Writ Petition no.6619 of 1992.
The orders passed in the aforesaid writ
petition have not been placed before the
Court, but what appears from the pleadings
of parties is that the said writ petition was
disposed of by an order dated 21.04.1992,
directing the Basic Shiksha Adhikari to
decide the petitioner's claim, asking for
reinstatement with continuity of service.
The Basic Shiksha Adhikari by his order
dated 25.06.1992 rejected the petitioner's
claim. This order was challenged by the
petitioner by instituting Writ Petition (S/S)
no.1241 of 1999 before the Lucknow
Bench of this Court. Once again, the
petitioner was relegated to the Basic
Shiksha Adhikari for a decision of the
matter afresh. It must be remarked that both
these orders are not before this Court and
reference
to
the
outcome
of
those
proceedings is based on the averments
made in the writ petition that have not been
disputed by the respondents. It appears that
the matter somehow landed in the hands of
the Director of Education, who also
rejected the petitioner's claim by an order
dated 07.01.2000.

8. The petitioner, finding that the
respondent Authorities would not consider
the matter in the right perspective,
approached
the
State
Administrative
Tribunal, questioning all the decisions
taken by the respondent Authorities,
regarding termination of his services. He
instituted Claim Petition no.1183 of 2000.
The claim petition came up for hearing
before the Tribunal on 05.11.2009 and was
partly
allowed.
The
orders
dated
18.01.1992, 03.06.1992, 25.06.1992 and
07.01.1992 were set aside. The petitioner
was ordered to be reinstated in service
forthwith with liberty to the respondents to
proceed with the inquiry, placing the
petitioner under suspension and continuing
the inquiry from the stage of furnishing him
with a charge sheet. It was further ordered
that the petitioner would be entitled to
consequential service benefits, except backwages, on a final outcome of the inquiry.
The respondents were directed to conclude
the inquiry within a period of three months.
A perusal of the Tribunal's judgment shows
that it proceeded on the reasoning that the
order terminating the petitioner's services
being stigmatic, disciplinary proceedings
ought to have been held. It is in the context
of this reasoning that the Tribunal made the
orders, indicated hereinabove.

9. In compliance with the Tribunal's
order,
the
Basic
Shiksha
Adhikari
reinstated the petitioner in service vide
order dated 29.06.2010. While doing so,
the
Basic
Shiksha
Adhikari
clearly
recorded in his order of reinstatement that
the allegations on the basis of which the
petitioner's
services
were
earlier
terminated, were absolutely untenable. It
was indicated in the order of reinstatement
that the precise allegations about the false
certification of his candidature by the
petitioner was on the basis that the
petitioner's deceased father, Hridaya Narain
Upadhyay died prior to 25.08.1972 and his
Provident Fund amounting to Rs.1225/-
was paid to his widow.

10. It is further recorded in the
reinstatement order that the payment of
Provident Fund, that was made to the wife
of the late Hridaya Narain Upadhyay, was
946 INDIAN LAW REPORTS ALLAHABAD SERIES
regarding a different man other than the
petitioner's
father.
His
father
was
functioning until the month of May, 1974,
when he had to proceed on medical leave.
He died on 05.09.1974. The Basic Shiksha
Adhikari has recorded the further fact that
the petitioner had produced before him a
copy of the family register, which shows
that the date of death of his father, the late
Hridaya Narain Upadhyay was 05.09.1974.

11. The Basic Shiksha Adhikari, on
the basis of these facts, has recorded a
categorical finding that it appears that there
were two teachers in two different primary
schools by the name of Hridaya Narain
Upadhyay, who were different men.
Recording the aforesaid finding, the Basic
Shiksha Adhikari reinstated the petitioner.

12. It must be remarked here that it is
but obvious that the part of the Tribunal's
judgment that permits the Basic Shiksha
Adhikari to issue a charge sheet to the
petitioner
and
resume
disciplinary
proceedings against him from that stage
and other incidental directions, loose all
significance. The petitioner's reinstatement
in terms of the Tribunal's order is in
absolute terms with no further proceedings
contemplated. This is also explicit from the
terms of the reinstatement order dated
29.06.2010 passed by the Basic Shiksha
Adhikari.

13. Now, the petitioner resumed his
duties on 02.07.2010 and is discharging his
duties ever since. On 21.01.2010, the Basic
Shiksha Adhikari issued directions that the
petitioner be paid salary as an untrained
teacher. The petitioner points out that in
accordance with the Government Order
dated 15.05.1997, all teachers appointed to
Primary Schools or Junior High Schools,
under the control of the Basic Shiksha
Parishad, who had been appointed under
the Dying-in-Harness Rules as untrained
teachers and had completed five years
service on 30.04.1997 or had two years
service left to superannuate, were exempted
from
training.
Subsequently,
by
a
Government Order dated 06.08.1999, it
was provided that the teachers of the
aforesaid category (untrained teachers
appointed under the Dying-in-Harness
Rules), who had completed five years
continuous service as on 31.12.1999, or
who had two years left to retire, were
granted exemption from training. Thus,
exemption from training was provided
twice.
A
Government
Order
dated
01.02.2000 came to be issued providing
that the teachers appointed under Dying-inHarness Rules, after they had put in five
years service, be made to undergo training.
It further provides that in case due to any
unforeseen eventuality training is not
possible, upon completion of five years
continuous service, an assistant teacher of
this class be given benefit of a trained
teacher's
pay
scale,
and,
thereafter,
arrangement be made to ensure training.

14. It is also pointed out by the
learned Counsel for the petitioner that upon
enforcement of the Government Order
dated 01.02.2000, untrained teachers, who
were appointed under the Dying-in-Harness
Rules and had completed five years
continuous service, have been extended the
benefit of a trained teacher's pay scale. He
has drawn the Court's attention to a number
of orders relating to such teachers, that
have been annexed compendiously as
Annexure no.8 to the writ petition. Learned
Counsel has also invited the Court's
attention to the fact that there were 215
teachers in the entire district of Jaunpur,
who were untrained and appointed under
the Dying-in-Harness Rules. The petitioner
1 All. Akhilesh Kumar Upadhyay Vs. State of U.P. & Ors.
947
was one of them. He has pointed out that
by means of an order dated 18.04.2015, all
these teachers have been asked to be
relieved from their duties w.e.f. 27.04.2015
in order to undergo training at the DIET,
Jaunpur w.e.f. 28.04.2015. The petitioner
too was relieved and sent to training. It is
stated that the petitioner has successfully
completed
his
training,
like
other
candidates. The petitioner, however, has
not been granted a trained teacher's pay
scale. He addressed various representations
in the matter, including the representations
dated 08.07.2015 and 03.02.2016, both to
the Basic Shiksha Adhikari, but to no avail.

15. When those efforts went in vain,
he approached this Court by means of Writ
- A No.27008 of 2016. This Court disposed
of the said petition, directing the Basic
Shiksha Adhikari to consider the grievance
of the petitioner and pass appropriate
orders in accordance with law, preferably
within four months of the date of receipt of
a copy of the order dated 04.07.2016
passed by the Court in the writ petition,
aforesaid. It is in consequence of the
aforesaid directions that the impugned
order dated 05.07.2017 has come to be
made by the Basic Shiksha Adhikari,
Jaunpur. The Basic Shiksha Adhikari has
rejected the petitioner's representation on
ground that the petitioner's services are to
be reckoned with effect from 02.07.2010,
when he was reinstated in service, in
compliance
with
the
order
dated
29.06.2010. It has been urged that the
petitioner's case is not one where he is
qualified
to
receive
benefit
of
the
Government order dated 01.02.2000, or a
further
Government
Order
dated
24.04.2002.

16. Learned Counsel for the petitioner
submits that the impugned order is
manifestly illegal, inasmuch as it is one
made
in
violation
of
the
State
Administrative Tribunal's judgment and
order dated 05.07.2017, which ordered
reinstatement in service with consequential
benefits, except back-wages, on the final
outcome of inquiry. He submits that once
the
respondents
have
held
that
the
petitioner is in no way guilty of any charge
while reinstating him, there is no further
inquiry, the outcome of which would delay
consequential service benefits. He submits
that the consequential service benefits,
except back-wages would include the
benefit of continuity of service. The
petitioner had joined service along with
215 other untrained teachers in the year
1991. Once he is notionally taken to have
been in continuous service, he cannot be
deprived of the benefits of the Government
Order dated 01.02.2000. It is also pointed
out that the petitioner has retired pendente
lite on 31.03.2018. He would, therefore, be
entitled to revision of his emoluments as a
trained teacher, including salary, G.P.F.
and pension. He would also be entitled to
arrears under all these heads.

17. Mr. Mrigraj Singh, learned
Counsel appearing on behalf of the Basic
Shiksha Adhikari and the Accounts Officer
in the Basic Shiksha Adhikari's office,
refuted the aforesaid submissions. It is,
however, not his case that the petitioner
secured employment by submitting false
documents. Rather, he has drawn the
Court's attention to paragraph no.12 of the
counter affidavit, where it is clearly
admitted that the petitioner's father, the late
Hridaya Narain Upadhyay was a man
different from the other Hridaya Narain
Upadhyay, whose wife had been paid
Providend Fund. It is mentioned in that
paragraph that the said Hridaya Narain
Upadhyay worked at the Primary School,
948 INDIAN LAW REPORTS ALLAHABAD SERIES
Barpar, whereas the petitioner's father
worked at the Primary School, Bhikharipur.
It is also admitted that the petitioner's father
died
on
05.09.1974.
The
aforesaid
assertions make it clear that there is nothing
left to be inquired against the petitioner.
There
could
indeed
be
no
further
disciplinary proceedings taken against the
petitioner by serving him with a charge
sheet as directed by the Tribunal. That part
of the Tribunal's order has gone out of
context.

18. Mr. Mrigraj Singh, however,
submits that the petitioner joined on
02.07.2010 and would complete five years
service on 02.07.2015. He has further been
provided the pay scale of a trained teacher
under the Government Orders, effective
from 02.07.2015. He has drawn the Court's
attention to paragraph no.15 of the counter
affidavit in this regard. He disputes the
petitioner's case that he is entitled, like the
other untrained teachers appointed along
with him on 29.10.1991, to a grant of
trained teacher's pay scale on completion of
five years' service reckoned from the year
1991, because in his case service has to be
reckoned from 02.07.2010.

19. This Court has carefully perused
the record and considered the rival
submissions advanced on behalf of both
sides. It is admitted for a fact that the
petitioner was never at fault in securing his
employment under the Dying-in-Harness
Rules. His termination from service came
about on account of the respondents
confounding his father's name with that of
another teacher, who was his father's
namesake. This fact was not detected or
disclosed by the respondents until judgment
by the State Public Tribunal. It is on that
account that the Tribunal found the order of
termination to be procedurally flawed and
permitted the respondents to issue a charge
sheet
to
the
petitioner,
resuming
disciplinary proceedings from that stage.
The Tribunal granted all consequential
benefits to the petitioner while ordering his
reinstatement,
but
the
consequential
benefits granted, were made available
contingent on the final outcome of the
inquiry/ disciplinary proceedings.

20. Now, it is apparent that it was to
say
the
least,
negligence
on
the
respondents' part to have confounded the
name of the petitioner's father with another
teacher's and on that basis, subjected him to
all this harassment. It is equally true that
once the respondents admit the fact that it
was for their mistake in confounding the
petitioner's father for another teacher, his
namesake, that the petitioner's services
were terminated, the judgment of the State
Public Service Tribunal would now apply
in terms as if the petitioner had been finally
exonerated in the inquiry. The direction to
grant all consequential benefits to the
petitioner would apply except back-wages,
that were denied. It is also clear that
consequential benefits include continuity of
service. The relief of continuity is no mere
notion or inconsequential fiction. It is to
apply with all its logical incidents. The
effect would be that the petitioner would be
deemed in service all these years, but for
his entitlement to receive back-wages. Full
effect, therefore, has to be given to the
benefit of continuity in service granted to
the petitioner, that is an integral part of the
Tribunal's direction to grant consequential
benefits. The petitioner, therefore, cannot
be treated to be appointed w.e.f. 02.07.2010
in compliance with the order of the Basic
Shiksha Adhikari dated 29.06.2010. The
order of the Basic Shiksha Adhikari dated
29.06.2010 is in no way an order of
appointment. It is an order to reinstate the
1 All. Virendra Kumar Singh Vs. State of U.P. & Ors.
949
petitioner in continuation of his original
appointment,
made
way
back
on
29.10.1991, in pursuance whereto he had
joined on 01.11.1991. The disassociation of
the petitioner between 18.01.1992 until the
petitioner's reinstatement in service on
02.07.2010 has to be treated as effaced.

21. This being the effect of the
Tribunal's order and the consequential
order of reinstatement, the petitioner would
certainly be entitled to the benefit of the
Government
Order
dated
01.02.2000,
reckoning his appointment as an untrained
teacher under the Dying-in-Harness Rules
in terms of the order dated 29.10.1991. The
petitioner would be entitled to a trained
teacher's pay scale on the basis of his
appointment dated 29.10.1991, counting
the period of five years with effect from the
petitioner's joining duties on 01.11.1991.

22. In the result, this writ petition
succeeds and allowed with costs. The
impugned order dated 05.07.2017 passed
by the Basic Shiksha Adhikari, Jaunpur
(Annexure no.14 to the writ petition) is
hereby quashed. A mandamus is issued to
the respondents to forthwith redetermine all
emoluments payable to the petitioner,
including salary, pension, Provident Fund
and other entitlements, on the basis that the
petitioner is entitled to the trained teacher's
pay scale on completion of five years
service in terms of the Government Order
dated 01.02.2000, reckoned with effect
from the petitioner's appointment, dated
29.10.1991, pursuant whereto he joined on
01.11.1991. The Basic Shiksha Adhikari,
Jaunpur and the Accounts Officer in the
office of the Basic Shiksha Adhikari,
Jaunpur are ordered to redetermine the
entire emoluments payable to the petitioner
within two months of the date of receipt of
a copy of this order and to pay all arrears
on account of this revision within a period
of two months, thereafter.
----------
(2021)01ILR A949
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.01.2021

BEFORE

THE HON'BLE SHEKHAR KUMAR YADAV, J.

Writ-A No. 52451 of 2009

Virendra Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare, Sunil Kumar Srivastava,
Sri Sudhir Kumar Chandraul, Ms.Vijeta
Kushwaha

Counsel for the Respondents:
C.S.C.

Civil Law-Petitioner duly appointed in
March' 2006 and his salary withheld from
March,2006
without
specifying
any
reason-later
impugned
order
passed
stating
that
incumbent
who
made
appointment
had
undergone
some
disciplinary proceeding for irregularity
committed in appointment of class III and
IV employees-sanctioned post and due
advertisement not denied-impugned order
illegal.

W.P. allowed. (E-7)

List of Cases cited: -

1.Writ-A No. 66584 of 2008 (Chandra Deo Singh
& ors. Vs St. of U.P. & ors.)

2.Writ-A No.3730 of 2009 (Ajai Raj Singh & ors.
Vs St. of U.P. & ors.)

(Delivered by Hon'ble Shekhar Kumar
Yadav, J.)