- (1.) SUDHIR Agarwal, J. Aggrieved by the order dated 26-12-1998 passed by the District Basic Education Officer, Varanasi the petitioner, Shiv Murti Singh has approached this Court under Article 226 of the Constitution of India assailing the said order and also seeking a writ of mandamus commanding the respondents to treat him in continuous service and to pay salary and other benefits.
(2.) BRIEFLY stated the relevant facts as stated in the writ petition are that the petitioner was appointed as clerk in the office of Sub-Inspector of Schools, Varanasi wherefrom he was transferred on administrative ground by the order dated 30-12-1983 passed by Secretary, Board of Basic Education and posted in the office of Sub-Inspector of Schools, Mainpuri. However, prior to the issuance of the transfer order he had already proceeded on medical leave from 20-12-1983 to 7-1-1984. He also made representations against the order of transfer and when did not get any order from the higher authority, tried to join at Mainpuri on 11-1-1984 and 2-2-1984 but he was not allowed to join by the District Basic Education Officer, Mainpuri on the ground that he has disclosed his name as Shivmurti Shajju though the person who was transferred is Shiv Murti Shastri. The petitioner thereafter moved an application for correction of his name as Shiv Murti Singh but no order was passed thereon and neither he was allowed to join at Varanasi nor Mainpuri. He challenged the order of transfer in Writ Petition No. 7802 of 1986 which was dismissed on 27-10-1988 observing that the transfer order having been passed in 1983 the delay disentitled him to get any relief. The petitioner in the meantime attained age of superannuation on 31- 12-1987. He again approached this Court in Writ Petition No. 24796 of 1988 claiming salary for the period of December, 1983 and onwards and retiral benefits. The aforesaid writ petition was disposed of vide judgment dated 17-4-1992 directing the Secretary, Basic Shiksha Parishad, Allahabad to decide his representation already submitted for salary and post retiral benefits. Pursuant thereto, the Secretary, Board of Basic Education, Allahabad passed order dated 1-8-1992 observing (a) petitioner is entitled for salary from 1-12-1983 to 19-12-1983 and if not already paid by the District Basic Education Officer concerned, the same shall be looked into by the said authority, (b) he is also entitled for the amount of provident fund and group insurance which has been deducted from his salary, (c) he is not entitled for any salary or any retiral benefit since he has not discharged any duty from 20-12-1983 and has not retired legally in accordance with the procedure prescribed under the rules. Aggrieved by the aforesaid order of denial of salary and retiral benefit, the petitioner filed Writ Petition No. 35181 of 1992. The aforesaid writ petition was finally disposed of by this Court vide judgment dated 30-1-1998 observing that the period between 20-12-1983 to 31-12-1987 was treated as leave without pay; and provident fund and other dues deducted, was payable to the petitioner. Moreover since the petitioner was not terminated or dismissed or removed from service, the retiral benefits due to him after his retirement on 31-12-1987 cannot be denied merely for the reason that he was absent from service from 20-12-1983 to 31-12-1987. Consequently this Court directed the petitioner to make a fresh representation in respect to his claim and the respondents were commanded to make available all service benefits admissible to the petitioner in law including retiral benefits within a period of six months from the date of the said representation. The petitioner accordingly submitted his representation dated 10-11-1998 requesting for payment of pension, leave encashment and other dues but the District Basic Education Officer, Varanasi by means of the impugned order has held that no retiral benefits are payable to the petitioner since he did not retire on 31-12-1987 as per rules and he was not treated to be in service after 20-12- 1983. The respondents have filed a counter-affidavit stating therein that the petitioner was working as clerk in the office of Sub-Inspector of Schools, Varanasi and during the aforesaid tenure he committed certain irregularities on account whereof he was transferred by order dated 30-12-1983 passed by the Secretary, Board of Basic Education and was posted in the office of Sub-Inspector of Schools, Mainpuri. However, the petitioner absented himself even earlier thereto, i. e. , since 19-12-1983 and he was relieved in absentia on 5-1-1984 by the Sub-Inspector of Schools, Varanasi. Thereafter he tried to get the order of transfer cancelled by exercising political and other pressure failing which he also filed Writ Petition No. 7802 of 1986 which was dismissed on 27-10-1988. On account of the aforesaid proceedings no disciplinary action could be taken against him. Since he was not relieved on 31-12-1987, on the date of retirement, as per rules and therefore, it was not possible to pay his pension and as such the decision was given by the Secretary, Board of Basic Education on 1-8-1992 on the representation of the petitioner pursuant to this Court's judgment dated 17-4-1992 passed in Writ Petition No. 24796 of 1988. Thereafter this Court considered the aforesaid order of Secretary, Basic Education in Writ Petition No. 35181 of 1992 decided on 30-10-1998 and in pursuance to the direction issued thereunder the petitioner's case was again considered by the District Basic Education Officer who did not find him entitled for any relief and hence decided the issue accordingly. It is also stated that his salary from 7-12- 1983 to 19-12-1983 being Rs. 506. 65, Group Insurance Rs. 12,502. 40 and contribution towards G. P. F. Rs. 4,254. 95 has already been paid and no further amount is payable to the petitioner since he is not entitled for any pension. I have heard Sri V. K. Srivastava, learned Counsel for the petitioner, Sri A. K. Banerji holding brief on behalf of Sri N. D. Rai, learned Counsel for the respondent No. 1 and learned Standing Counsel for other respondents.
(3.) LEARNED Counsel for the petitioner vehemently contended since he was never terminated, dismissed or removed and therefore, after attaining the age of superannuation, denial of pension and other retiral benefits to him is illegal, arbitrary and discriminatory and the respondent No. 3 has acted illegally in passing the order impugned in the writ petition. He further contended that this Court already considered the said issue in Writ Petition No. 35181 of 1992 while considering the order dated 1-8-1992 passed by the Secretary Board of Basic Education and held that the petitioner is entitled for retiral benefits yet the respondent No. 3 is passing an order reiterating the same conclusion which was already found incorrect by this Court amounts to sitting on the judgment of this Court and the impugned order, therefore, is patently illegal, contemptuous in nature and thus a nullity in the eyes of law. On the contrary, learned Counsel for the respondents contended since the petitioner did not handover charge and got himself relieved as per rules, therefore, he is not entitled for any retrial benefits. From the facts and submissions noticed above, it is evident that admittedly the petitioner was absent from duty from 20-12- 1983 till 31-12-1987 but neither any disciplinary action was taken against him nor he was terminated nor as a result of any disciplinary action he was dismissed or removed. Learned Counsel for the respondents also could not place before the Court any provision or statute under which the petitioner could be deemed to have automatically terminated from his service since he was unauthorizedly absent from service. Being a permanent employee in the office of Sub-Inspector of Schools, the petitioner could not have been terminated without complying the provision of Article 311 (2) of the Constitution of India. Moreover, the decision denying him retrial benefits taken by the respondent No. 2 for the same reason i. e. he did not retiral himself on 31-12- 1987 in accordance with rules was already adjudicated by this Court in its judgment on 30-10-1988 passed in Writ Petition No. 35181 of 1992 and disapproving the same this Court held as under : "but, however the fact remain that the period during which the petitioner remained absent was treated to be leave without pay and, therefore, he should be deemed to have retired on 31st December, 1987 and shall be entitled to all such service benefits as would be available in law to the petitioner till the period 31st December, 1987 and the retiral benefits which are payable to him on such retirement. Since the petitioner's service has not been terminated and he having not been dismissed or removed from service, the service benefits which he had otherwise acquired cannot be denied to him. ";