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Abdul� Waheed v. State Of U.P. & Ohters - WRIT - A No. 14756 of 1992 [2007] RD-AH 5777 (1 April 2007)


This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).


Hon'ble Rakesh Tiwari, J

Heard counsels for the parties and perused the record.

The petitioner claims to have been appointed as Assistant Urdu Teacher in the pay scale of Rs.220-440 on 15.6.1988 in the institution, namely, Madarsha Urdu Isha-tul-Ulum Sarari Khan, Bareilly (hereinafter referred to as 'the Madarsha') which is managed by the respondent no. 3- Maulana Abdul Rauf Manager of the Madarsha.  The services of the petitioner were alleged to be governed by Arbi Madarsha Niyamawali, sanctioned and approved in concurrence with the Finance Department of the State of U.P. G.O. No. N.E-11/2371/Ten-87 dated 31.7.1987 vide Government Notification no. 3367/1/15-17-87-53/5/86 dated 22.8.1987.

The allegation of the petitioner is that when the institution reopened on 23.3.1991 after annual holidays, he went to join his duties but was not allowed to join by the Manager.  It is stated that in the circumstances, the petitioner brought the aforesaid fact to the knowledge of District Basic Shiksha Adhikari, Bareilly vide his letters dated 13.5.91, 3.6.91, 28.6.91, 20.8.91, 3.6.91, 1.10.91, 28.10.91, 11.12.91 and 26.12.91. Ultimately, the Basic Siksha Adhikari-respondent no. 2 directed the Manager of the institution- respondent no. 3  vide letter dated 1/9.2.1992 to allow the petitioner to join his duties and in case any action had already been taken under Paras 33 and 34 of the Service Rules, he may be apprised of the action taken in the matter was not complied with by the respondent no. 3. The relevant  paragraphs 2,3 and 4 and  of the letter are as under :-

" 2- loZJh vCnqy oghn ,oa ekSykuk 'kQhd vgen dh fyf[kr f'kdk;rsa gS afd mudh cSad ikl cqd vki vius ikl j[ks gq, gSa vkSj lEcfU/krksa dks ugha ns jgs gSa A

 3- vkius loZ Jh 'kQhd vgen ,oa vCnqy oghn dh lsok,a voS/kkfud #i ls lekIr dh gSa bu izdj.kksa esa vkidks bl dk;kZy; ds i= la- vj0e0@cS0@2639&44@1991&92 fnukad 28-6-91 Onkjk funsZ'k tkjh fd;s tk pqds gSa fd tc rd laoS/kkfud izfdz;k vki Onkjk iw.kZ ugha dh tkrh gSa ( tSlk fd vjch Qkjlh enjlksa dh fu;ekoyh 1987 ds fu;e la0 33 ,oa 34 esa Li"V fd;k x;k gS ) bu nksuksa v/;kidksa dk fu"dklu vekU; gS A vr% mi;qZDr lUnfHkZZr i= esa izlkfjr funsZ'kkuqlkj dk;Zokgh djsa vkSj mUgsa enjls esa ml le; rd dk;Z djus nsa tgkW rd fd vki Onkjk laoS/kkfud dk;Zokgh iw.kZ ugha dj yh tkrh gS A

4- vkiusa vHkh rd 3@91 ls vc rd ds osru fcy dk;kZy; ys[kk vf/kdkjh cjsyh esa tkWp gsrq izLrqr ugha fd, gSa A foRrh; o"kZ lekfIr dh vksj tk jgk gS A ;fn vki ys[kk vf/kdkjh dh tkWp mijkUr Hkh izLrqr ugha djusa gS rks Hkqxrku u gksus dk lkjk mRrjnkf;Ro vkidk gh gksxk A ;gkWa ;g vkSj Hkh Li"V djuk gS fd ogha deZpkjh ekU; gksxsa ftuds vkius 3@90 ls 5@90 rd dh vof/k ds osru fcy izLrqr fd;s Fks A"

Counsel for the petitioner has contended that the order of  respondent no. 2, from the above facts, it is apparent that the services of the petitioner have been terminated in violation of principles of natural justice read with Paras 33 and 34 of the Rules of 1987. It is stated that the salary and allowances of the petitioner w.e.f. March 1991 till the date of filing of the writ petition in February, 1992 have not been paid in spite of repeated demands to which he is entitled to.  

The petitioner has prayed for a writ of mandamus commanding the respondents that the petitioner be allowed to join his duties and to make the payment of his salary as well as outstanding dues amounting to Rs.57,690.20P together with 12% interest. The other relief which has been sought by means of an amendment application in the prayer is for a writ of mandamus commanding respondent no. 3 to comply with the direction issued by respondent no. 2 contained in Annexure X to the writ petition and the petitioner be allowed all benefits and arrears of pay and allowances together with 12% interest.

From the averments made in the counter affidavit filed on behalf of the Manager - respondent no. 3, it appears that no post of Assistant Urdu Teacher was ever advertised  by the Madarsha and that the petitioner was appointed for a fixed period of one year on 15.6.1988 in a leave vacancy of one Sri Sagir Ahmad who had gone on leave for a period of one year..  Sri Sagir Ahmad further extended his leave for one more year.

As the petitioner was re-appointed in  his leave vacancy till 14.6.1990.  It is averred in paragraph 5 of the counter affidavit that since annual examinations could not be held within time due to Government directions, so the services of the petitioner were extended till November, 1990.

 Meanwhile complaints against the petitioner levelling serious allegations were received by respondent no. 3. In the meantime, Sri Sagir Ahmad also resigned from service, as such there arose a permanent vacancy which was advertised in the newspapers on 17.11.1990 inviting applications for the post of Assistant Arabic Teacher.

It further appears from the perusal of the aforesaid counter affidavit that in pursuance of the aforesaid advertisement, the petitioner also applied vide his application dated 18.11.1990.

  The manager of the institution- respondent no. 3 approached the Basic Shiksha Adhikari and Inspector, Arabic & Persian Madarshas, U.P., Allahabad for fixing a date of interview and for making arrangement for the representative to conduct interview. As he did not receive any communication from the concerned authorities and students of the Madarsha were suffering in their studies due to shortage of teachers, therefore, the petitioner was asked by respondent no. 3 to continue for another three months till the date of interview is fixed by the departmental authorities.

It is clearly averred in the counter affidavit that the petitioner had not continuously worked from 15.6.1988 till 23.3.1990 as alleged by him. In paragraph 6 of the counter affidavit it has been averred that the petitioner was served with the show cause notice dated 8.1.19991 together with all the copies of the relevant complaints and documents framing charges against him calling upon him to submit his reply within 21 days but neither reply to the show cause notice was submitted by the petitioner nor he offerred any explanation, as such vide order dated 3.3.1991, his services were terminated.

A perusal of paragraph 9 of the counter affidavit  shows that the stand taken by the respondent no. 3 is that Rules 33 and 34 of the Rules of 1987 were fully complies with by the respondents and action was taken after following the procedures prescribed therein, as such, the Basic Shiksha Adhikari stopped salary of the petitioner vide order dated 3.3.1991.

Standing Counsel has submitted that the petitioner never challenged the order of termination dated 3.3.1991, appended as Annexure C.A.9 to the counter affidavit in the writ petition, as such, the order dated 3.3.1991 has attained finality and the petitioner is not entitled to any relief.

In view of the admitted facts that thepetitioner has not challenged the order of termination dated 3.3.1991 and initially his appointment was made only for a fixed period of one year and the petitioner was thereafter appointed afresh from time to time in order to meet the exigencies for fixed period each time. He has been paid salary for the said period, the reliefs of continuity of service and payment of salary are misconceived and the services of the petitioner having been terminated after compliance of Rules 33 and 34 of the Rules of 1987, he is not entitled to any relief as claimed by him.

For the reasons stated above, the writ petition is devoid of any merits. It is accordingly dismissed. No order as to costs.

Dated 1.5.2007



Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites


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