Yamuna Prasad vs State Of U.P. Thru ...
2023 Latest Caselaw 5501 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 18
 

 
Case :- WRIT - A No. - 7050 of 2015
 

 
Petitioner :- Yamuna Prasad
 
Respondent :- State Of U.P. Thru Prin.Secy.Basic Edu.Civil Sectt.Lko.Andors.
 
Counsel for Petitioner :- P.N. Singh Kaushik,Krishna Madhav Shukla
 
Counsel for Respondent :- C.S.C.,Ajai Kumar,Neeraj Chaurasiya
 

 
Hon'ble Pankaj Bhatia,J.

The present petition has been filed by the petitioner alleging that Ram Kawal Junior High School, Sirsiya, Rajesultanpur, Ambedkarnagar was established in the year 1982 by a Society registered under the Societies Registration Act and was granted temporary recognition in the year 1982 and permanent recognition on 21.05.1987 by the Basic Shiksha Adhikari, Faizabad. It is stated that total sanctioned strength of the employees in the institution was 7, one post of Headmaster, 3 posts of Assistant Teachers, 1 post of Clerk and 1 post of Peon. It is stated that subsequently the institution was taken under grant in aid list.

The claim of the petitioner is that he was appointed as a Peon on 31.12.1983 by the Committee of Management in accordance with law. The appointment letter is contained in Annexure-4 in the writ petition.

It is claimed that when at the time of the institution being taken into grant in aid, an MR list was sent by the institution. A copy of the MR list has been annexed as Annexure-1 to the writ petition wherein the name of the petitioner is included, however, the same is suffixed by the phrase "no approval".

The Counsel for the petitioner states that despite the name of the petitioner finding place in the MR list, the salary in respect of the other persons were approved whereas the salary from the State exchequer was never paid to the petitioner which led to the filing of the present writ petition.

A counter affidavit was filed by the respondent no.4 wherein a defence was taken that the petitioner was not entitled to the salary from the government exchequer as the appointment of the petitioner was not in accordance with The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Ministerial Staff and Group 'D' Employees) Rules, 1984 which requires the appointment to be made after following the procedure prescribed under the said Rules which was not followed in the case of the petitioner and thus, although the salary was given to the other persons named in the MR list, no orders were passed in respect of the petitioner. It was also pleaded that the petitioner did not have the requisite qualification as prescribed under Rule 4 of the 1984 Rules.

Subsequently, supplementary counter affidavit was filed by the respondents wherein it has been stated that while taking a decision in respect of taking the institution under grant in aid vide Government Order dated 02.12.2006, it was specifically provided that for approving the names of the employees, it was essential that the appointment should have been in accordance with the Rules and should have been approved by the proper authority and possesses the minimum eligibility and only those employees would be entitled for payment of salary. It is further pleaded that on 04.01.2007, a further decision was taken that a Committee be constituted to ensure that the salary bill of the persons are approved only when they have been appointed in terms of the 1984 Rules after following the process as prescribed.

It is further argued by the Counsel for the respondents that MR list submitted by the petitioner itself shows that against the name of the petitioner, it is written in suffix that there is no approval, as such, the claim of the petitioner for payment of salary is not justified and the petition is liable to be dismissed.

The Counsel for the respondent has also argued that the appointment of the petitioner is of the year 1983, as such, the appointment was not in accordance with the 1984 Rules. The defence taken is not sustainable as the 1984 Rules do not have any retrospective operation. The Counsel for the respondents further argued that the appointment prior to the framing of the 1984 Rules are to be governed by the Education Code and in terms of the mandate of the Uttar Pradesh Intermediate Education Act, 1921. The Uttar Pradesh Intermediate Education Act prior to its amendment, for the period 1983 authorises the Committee of Management to be the Appointing Authority of the Peon.

In the light of the aforesaid, the Counsel for the petitioner argues that there was no fault in the appointment of the petitioner which was done by the Committee of Management which was authorised prior to the 1984 Rules came into effect. He further draws my attention to the judgment of this Court in the case of Shripal Yadav vs State of U.P. and others; [2017 (35) LCD 2767], wherein this Court had recorded the following finding in paragraph 13, which is as under:

"13. We have heard learned counsel for the appellant and the learned counsel for the respondents, and as observed hereinabove the approval to the appointment of the appellant had been granted by the District Basic Education Officer and he was working against a post that came to be created and sanctioned upon permanent recognition. The appointment of the appellant was admittedly prior to the enforcement of the 1984 Rules. There is therefore no occasion to apply the Rules which do not have retrospective application. A valid appointment made prior to the Rules does not get invalidated after its enforcement. The Rules do not create any embargo. Thus the conclusion drawn by the learned Single Judge that the appointment was not in conformity with the 1984 Rules is erroneous. The fact that the appointment was not approved by the District Basic Education Officer, also appears to have been incorrectly recorded in the judgment and is against record inasmuch as the approval order dated 11.11.1986 has not been denied. The third count is that the appellant's name being omitted from the grant-in-aid list also appears to be an incorrect exercise on the part of the respondents inasmuch as, as noted above the circular of the Director of Education Basic dated 04.01.2007 categorically authorizes the inclusion of such names if the appointment is approved by the District Basic Education Officer. The learned Single Judge has not noticed the same."

The Counsel for the petitioner further places reliance on the judgment of this Court in the case of Riksh Pal Singh vs Secretary, U.P. Basic Education Board, Allahabad and others; [(1990) 1 UPLBEC 351] and invited the attention of this Court towards paragraphs 5 and 7, which are as under:

"4. The ground on which the petitioner's service has been terminated is that the petitioner does not have the certificate of teachers training course. At the time the petitioner was appointed in 1968 a training certificate was not one of the conditions for appointment to the post of Assistant Teacher in Junior High Schools. In fact there was no rule laying down the conditions of service for teachers of Junior High Schools. These Rules were framed for the first time in 1978. Rule 5 of the Rules lays down that no person shall be appointed as Assistant Teacher in the school unless he possesses the minimum qualification prescribed for the post. Rule 4 prescribes the qualification for the post of Assistant Teacher and one of the qualification is certificate of teachers training course.

5. The Act neither provides for transfer of management of Junior High Schools to the Government or the Education Board nor does curtail the managerial power of the management of these schools. Section 9 of the Act provides for transfer of the employees serving under a local body exclusively in connection with the basic schools and after transfer these employees to hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as they would have held the same if the Board had not been constituted. This section further provides for option to these employees to opt out of the service of the Board within two months from the appointed date. So far as the private schools are concerned, there is no such provision in the Act or Rules framed thereunder for transfer of the employees of these schools to the Government or to the Board. The management of these private schools has been left untouched by the Act and the Rules. Only in 1978 for the first time Rules were framed regulating the conditions of service of the teachers working in Junior High Schools but the power to appoint these teachers remains with the management of these schools. The Act and the Rules framed there under do no deal with services of the employees including the teachers of these schools, who were appointed before framing of the Rules in 1978. The Rules are perspective in nature and do not affect the appointments, which have already been made before the commencement of the Rules. The services of the Teachers who were appointed before the enforcement of 1978 Rules cannot be terminated on the ground that they do not possess some requisite minimum qualifications which have been provided for the first time by 1978 Rules."

In the light of the aforesaid, he argues that the appointment which are of vintage flavor should not be disturbed. He also argues that the petitioner has attained the age of superannuation and thus, the present petition would have financial implications only.

In the light of the arguments advanced above, it is clear that the petitioner was appointed prior to the 1984 Rules coming into force. The appointment was by the Committee of Management which was authorised in terms of the U.P. Intermediate Education Act as prevailing then and there was no violation of any statutory provisions in respect of the appointment of the petitioner. The name of the petitioner found mention in the MR list, there was no requirement of obtaining any prior approval prior to the 1984 Rules come into force and thus, no fault can be found in the appointment of the petitioner which is fortified by the fact that the name was included in the MR list by the Committee of Management.

The stand taken by the respondent that the appointment of the petitioner was not in accordance with the 1984 Rules merits rejection for the simple reason that the 1984 Rules never had any retrospective application and this view has been fortified by this Court in the case of Shripal Yadav (Supra). Even otherwise from the list of teaching and non-teaching staff as sent in MR list, there is an inclusion of the name of the Headmaster, Teachers, Class-IV employees as well as the petitioner as Peon, thus the stand taken by the respondent are wholly arbitrary and contrary to the law, as such, the writ petition deserves to allowed.

Accordingly, the impugned order dated 21.04.2015 is quashed and the writ petition stands allowed with a direction to the respondents to ensure the payment of arrears of salary to the petitioner from the date when the approval was granted to the other employees. The necessary benefits including the revision of pay to which the petitioner would be entitled shall also be given to the petitioner. The computation as directed for the arrears of salary till the date of superannuation would be made expeditiously within a period of four months from the date of production of certified copy of this order. The petitioner is also entitled for the applicable consequential pensionary benefits.

Order Date :- 20.2.2023

Piyush/-