The Finance Controller, Basic ... vs Badri Nath Tiwari And 3 Others
2023 Latest Caselaw 561 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 29
 

 
Case :- SPECIAL APPEAL No. - 702 of 2022
 

 
Appellant :- The Finance Controller, Basic Shiksha Parishad
 
Respondent :- Badri Nath Tiwari And 3 Others
 
Counsel for Appellant :- Yatindra
 
Counsel for Respondent :- C.S.C.,Arun Kumar Pandey,Satish Chandra Dwivedi
 

 
Hon'ble Manoj Misra,J.

Hon'ble Vikas Budhwar,J.

Heard Sri Yatindra, learned counsel for the appellant and Sri Satish Chandra Dwivedi for the Respondent no.1 and the learned Standing Counsel for the Respondents 2 and 3.

This intra-court appeal is against the judgment and order of the learned Single Judge dated 16.11.2021 by which the writ petition filed by the first respondent seeking a direction upon the opposite parties therein including the appellant to pay leave encashment to the petitioner along with interest @ 18% has been allowed with a direction upon the opposite parties therein to release the amount of leave encashment as per petitioner's entitlement within a period of three months from the date of the order failing which, the writ petitioner was entitled to an interest @ 7% per annum.

A perusal of the record would reflect that the writ petitioner (the first respondent herein) was appointed as an Account Clerk in Zila Parishad Allahabad in the year 1966. After constitution of the U.P. Basic Shiksha Parishad under the provisions of U.P. Basic Education Act, 1972 (1972 Act), the services of the writ petitioner stood transferred to the Basic Shiksha Parishad in terms of Section 9 of the 1972 Act. Whereafter, the writ petitioner continued to serve the Basic Shiksha Parishad from where he superannuated on 31.01.2003. The case of the writ petitioner was that the benefit of leave encashment was available to the writ petitioner while he was an employee of Zila Parishad and, by virtue of Section 9 of the 1972 Act, the right to such benefit stood preserved, therefore, on attaining the age of superannuation, he was entitled to that benefit.

The learned Single Judge by placing reliance on a Division Bench decision of this Court in U.P. Basic Shiksha Parishad and 4 others Vs. Dharnidhar Dubey, Special Appeal Defective No. 25 of 2016, dated 02.02.2016 allowed the writ petition in terms above.

Section 9 of the 1972 Act is quoted below: -

"9. Transfer of employees. - (1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are [altered by the rules made by the State Government in that behalf] : Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board : Provided further that the board may employ any such teacher, officer or other employee in the discharge of such functions under this Act as it may think proper and every such teacher, officer or other employee shall discharge those functions accordingly. (2) Nothing in sub-section (1) shall apply to any teacher, officer or other employee, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice, his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body, which shall be as follows -

(a) in the case of a permanent employee, a sum equivalent to his salary (including all allowances) for a period of three months or for the remaining period of his service, whichever is less;\

(b) in the case of a temporary employee, a sum equivalent to his salary (including all allowances) for one month or for the remaining period of his service, whichever is less.

(3) Notwithstanding anything in sub-section (1), any person referred to therein, who becomes an employee of the Board shall be liable to be transferred from the school or from the local area in which he was employed immediately before the appointed day to any other school or institution belonging to the Board or, as the case may be, to any other local area at the same remuneration and on the same other terms and conditions of service as governed him immediately before such transfer [until such tenure, remuneration and other terms and conditions are altered by the rules referred to in sub-section (1)]:

Provided that no teacher of a basic school [which before the appointed day belonged to a local body] shall be transferred to a basic school belonging to any other local body except with his consent.

(4) If any question arises whether the services of any person stand transferred to the Board under sub-section (1) or as to the remuneration and other terms and conditions of service of such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final.

(5) Any provident fund maintained by any local body for the employees referred to in sub-section (1) alongwith all contributions of such employees as well as of the local body which ought to have been but have not been deposited therein before the appointed day, shall be transferred by the local body to the Board, which shall hold it in trust for the employees concerned in accordance with the terms and conditions governing such fund.

(6) The transfer of services of any employee to the Board under sub-section (1) shall not entitle any such employee to any compensation and no such claim shall be entertained by any Court, Tribunal or Authority."

It is not in dispute that in Dharnidhar Dubey's case (supra) the writ-Court vide judgment and order dated 25.8.2014 passed in Writ-A No.16921 of 2008, by placing reliance on the provisions of Section 9 of the 1972 Act had allowed the benefit of leave encashment to an employee whose services were transferred to the Basic Shiksha Parishad consequent to the enactment of 1972 Act. It is also not in dispute that the Special Appeal Defective No. 25 of 2016 filed against the order of the writ-Court was dismissed by a detailed judgment and order dated 02.02.2016 which has neither been set aside nor stayed by any Court.

The learned counsel for the appellant, however, submitted that although Division Bench decision of this Court in Dharnidhar Dubey's matter has not been set aside but another order of this Court passed in Special Appeal Defective No.497 of 2016, dated 9.8.2016, which followed the order of this Court in Dharnidhar Dubey's matter, was stayed by the Apex Court.

In this context, on 21.11.2022 we had passed an order requiring the appellant to file an affidavit stating specifically whether in that matter pending before the Apex Court, employees seeking such benefit were transferred from erstwhile local body to the Basic Skhiksha Parishad after the commencement of the 1972 Act.

Pursuant to the above order, Sri Yatindra had informed the Court that in that matter, the employees were not transferred by virtue of Section 9 of the 1972 Act. Consequently, we do not deem it appropriate to defer the hearing of this appeal on the ground of alleged pendency of an appeal against the order of this Court in Special Appeal Defective No.497 of 2016.

The learned counsel for the appellant sought to distinguish the judgment and order of this Court in Dharnidhar Dubey's matter by contending that from the averments made in the writ petition it appeared that on July 9, 1986 the writ petitioner was appointed afresh on the post of Assistant Accountant at the Head Quarters of U.P. Basic Shiksha Parishad. It was contended that since there existed a fresh appointment, the benefit of past services available to a transferred employee by virtue of the provisions of Section 9 of the 1972 Act would not be available.

To test the aforesaid submission, we have perused the record. The order of appointment dated July 9, 1986 appears to be an internal arrangement in the organization. The said appointment order places the writ petitioner in the headquarter by addressing him as clerk of U.P. Basic Shiksha Parishad. There is no dispute raised in the counter affidavit with regard to the writ petitioner being an erstwhile employee of Zila Parishad Allahabad whose services were transferred to the Basic Shiksha Parishad consequent to the constitution of the Basic Shiksha Parishad under the 1972 Act. It is not the case of the appellant that there was any termination of his service and thereafter a fresh appointment was made. The appellant seems to be taking advantage of the averment made casually by the writ petitioner in the writ petition that he was later appointed on the newly created post of Assistant Accountant in the Head Office on 09.07.1986. Such posting does not affect the right of the writ petitioner because it is always possible that after an employee is transferred to a fresh organization, he may subsequently be placed on any newly created post. By such placement it is not a fresh birth in that institution because the employee is already part of that institution consequent to the transfer of his services from the erstwhile institution by virtue of Section 9 of the 1972 Act. As the service benefits available to such an employee stood preserved by Section 9 of the 1972 Act, we find no merit in this appeal.

The appeal is dismissed.

Order Date :- 6.1.2023

N.S.Rathour