- (1.) SUDHIR Agarwal, J. Sri R. K. Ojha, assisted by Sri Satyanshu Ojha, learned Counsel for the petitioner and learned Standing Counsel for the respondents No. 1 to 4 and Sri A. K. Yadav, who has put in appearance on behalf of respondent No. 6 have been heard. The respondent No. 5 was issued notices by registered post and as per the office report dated 15. 3. 2005, neither the acknowledgement has been received undelivered nor the notice has been re ceived back, therefore, service upon respondent No. 5 is deemed sufficient. No one has put in appearance on behalf of respondent No. 5.
(2.) COUNTER affidavit has been filed on behalf of respondents 1 to 4 to which the petitioner has also filed the rejoinder affidavit. The respondent No. 6 has not filed any counter affidavit, but has opposed the writ petition on the basis of the aver ments contained in the writ petition as well as adopting the averments made in the counter affidavit filed on behalf of respondents 1 to 4. As requested by the learned Counsel for the parties, the matter has been heard finally and is being decided at this stage under the Rules of the Court. The petitioner is aggrieved by the order dated 26. 10. 2004 passed by Joint Director of Education, Gorakhpur Region, Gorakhpur (respondent No. 3) holding that the petitioner was not entitled for reinstatement in services on the post of Assistant Teacher and, consequently, no salary could have been paid and revok ing the order passed by the District Inspector of Schools, Gorakhpur (hereinafter referred to as 'dios') dated 18. 6. 2001 being illegal. He has also sought a writ of mandamus commanding the respondents to pay arrears of salary to the peti tioner from the date he has joined the institution pursuant to the DIOS order dated 18. 6. 2001. The facts in brief, giving rise to this writ petition, are that Lal Bahadur Shastri Uchchatar Madhyamik Vidyalaya, Rakhukhor, Gorakhpur (hereinafter re ferred to as the 'college') is an intermediate institution recognized by the Board of High School and Intermediate under the provisions of U. P. Intermediate Educa tion Act, 1921 (hereinafter referred to as '1921 Act'), and, the same being also aided institution, payment of salary to the staff of the college is governed by the provisions of U. P. High Schools and Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 (hereinafter referred to as '1971 Act' ). The petitioner was appointed as Assistant Teacher, C. T. Grade, on 12. 9. 1976 on purely ad hoc basis, which was approved by the DIOS by order dated 6. 8. 1977. He was appointed on substantive basis vide order dated 22. 8. 1977 passed by DIOS pursuant to State Government's order dated 21. 4. 1977. At the time when the petitioner was appointed in the College, he was already convicted and sen tenced in Sessions Trial No. 128 of 1974 under Sections 302, 307/34,i. P. C. and awarded punishment of life imprisonment vide judgment dated 31. 5. 1975 passed by Addl. District and Sessions Judge-ll, Basti. The appeal there against dismissed by this Court in 1978 where after the petitioner was arrested and sent to jail to undergo sentence on 2. 6. 1979. The petitioner in the year 1996 was released by the' Hon'ble Governor in exercise of power under Article 161 of the Constitution remitting remaining sentence and he was released from jail on 5. 7. 1996. Thereaf ter, the petitioner submitted an application dated 23. 12. 1999 before DIGS stating that' after having been released from jail, he be allowed to join his services since his services were not terminated at any point of time. The- DIOS passed an order on 18. 6. 2001 (Annexure-13 to the writ petition) directing the Principal of the Col lege to allow the petitioner to join the College and it was also stated in the said order that the petitioner shall not be entitled for any salary for the period, he remained absent, but would be paid salary after the date of his joining. The peti tioner claims to have submitted his joining on 2. 7. 2001 and claims to be working thereafter but was not paid any salary by the respondents. When he made repre sentations for payment of salary, the DIGS sent a letter dated 10. 12. 2001 refer ring the matter to Director, Secondary Education seeking his guidance stating that there was no vacancy in the College, the services of the petitioner were already terminated and his claim was pending before the Apex Court, therefore, the petitioner could have been reinstated in service. The Director, it appears, sought instructions from the Government and the Special Secretary, U. P. Govern ment vide order dated 28. 9. 2004 referred the matter to the Joint Director of Edu cation, Gorakhpur for his decision, after examining the entire issue. The respon dent No. 3, pursuant to the aforesaid, considered the matter and after hearing the petitioner, Committee of Management of the College and the Principal as also respondent No. 6, who claims to have been working in the vacancy caused due to termination of the petitioner, passed the impugned order dated 26. 10. 2004, ag grieved whereby the present writ petition has been filed.
(3.) ON behalf of respondents No. 1 to 4, counter affidavit has been filed stating that the management after conviction of the petitioner, dismissed him from ser vice with effect from 16. 8. 1983 and in the resultant vacancy appointed Sri Sunder Prasad, respondent No. 6. It is said that since the petitioner was already termi nated due to his conviction and he was in jail from 2. 6. 1979 to 6 8. 1996, there was no occasion for DIGS to pass any order for his reinstatement particularly when he was not exonerated or acquitted but only further sentence was remitted by the Hon'ble Governor in exercise of power under Article 161 of the Constitu tion. It is said that the Joint Director of Education has passed the order after considering the entire facts and circumstances correctly and, therefore, the writ petition is liable to be dismissed. The petitioner has filed rejoinder affidavit, wherein he has strongly disputed the fact that his services were ever dismissed and it is said that there is no order of dismissal nor any approval was obtained by the Committee of Management from the competent authority nor any such order was ever communicated to the petitioner and, therefore, it cannot be said that the petitioner was dismissed from services. Sri Ojha, learned Counsel for the petitioner vehemently contended that the petitioner was never communicated any order of termination or dismissal and, therefore, even though it is true that he was convicted and jailed from 2. 6. 1979 to 6. 8. 1996, his services were never terminated or dismissed by the competent authority in accordance with law and therefore, it cannot be said there existed any vacancy on 'the post on which he was appointed. When the petitioner was released from jail, he was entitled to join his services and the DIGS passed a valid order, which has wrongly and illegally been set aside by the respondent No. 3. He further contended that since there was no vacancy due to non- termination or dismissal of the petitioner, the respondent No. 6 could not have been appointed on the said post and, therefore, the claim of the respondent No. 6 that he was continuing in service since 1981 was wholly illegal and no nest and would not defeat the claim of the petitioner for reinstatement in service.;