Allahabad High Court
Basic Education Officer Up Allahabad ... vs Manorama And 22 Others on 22 May, 2024
Author: Mahesh Chandra Tripathi
Bench: Mahesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:93805-DB
Court No. - 40
Case :- SPECIAL APPEAL DEFECTIVE No. - 438 of 2024
Appellant :- Basic Education Officer Up Allahabad And 2 Others
Respondent :- Manorama And 22 Others
Counsel for Appellant :- Rama Nand Pandey
Counsel for Respondent :- C.S.C.,Neeraj Shukla
Hon'ble Mahesh Chandra Tripathi,J.
Hon'ble Anish Kumar Gupta,J.
1. Heard Shri Rama Nand Pandey, learned counsel for the appellant and Shri Neeraj Shukla, learned counsel for the petitioners-opposite parties.
2. Present intra-court appeal is preferred under Chapter VIII Rule 5 of the Allahabad High Court Rules 1952 against the impugned judgement and order dated 23.05.2023 passed by learned Single Judge in Civil Misc. Writ Petition No.657 of 2022 (Manorama and others vs. State of U.P. and others). For ready reference, the order dated 23.05.2023 is extracted as under:-
"Heard learned counsel for the petitioners; learned Standing Counsel appearing on behalf of respondent no.1 and Sri Ashok Kumar Yadav, learned counsel for respondent nos. 2 to 4.
This writ petition has been filed praying for direction to respondents to give the selection grade w.e.f. completion of 10 years' service and other benefit in pursuance of the Government Order dated 20.12.2001 to the petitioners including the previous services rendered by the petitioners in different districts.
Learned counsels for the parties have agreed that the facts of the case are covered by the judgement of this Court in the case of "Abhay Kumar Pathak and 5 others Vs. State of U.P. and 3 others, Writ-A No. 10096 of 2021", wherein the aforesaid benefits were granted to the petitioners.
In view of the above, this writ petition is allowed in terms of the aforesaid Judgement passed by this Court in the case of Abhay Kumar Pathak (supra). The petitioners are held entitled for promotional pay and selection grade as per their entitlement including the previous services rendered by them for the above purposes."
3. In the writ proceeding, the petitioners-respondents have sought direction to the respondents to pay salary to the petitioners equivalent to other similarly situated incumbents, who are getting their salary as per the selection grade and also include the services rendered by the petitioners earlier. It appears that petitioners were appointed as Assistant Teachers in the Primary Schools during the year 2006-2011 in different districts and they also got promoted to the post of Head Master in Primary School or Assistant Teacher in Junior High School. It is claimed that the State Government had promulgated a transfer policy for inter district transfer of the teachers appointed in Primary School and Junior High School conducted by the U.P. Basic Education Board on 02.12.2019 and petitioners have applied for the same through online mode. In lieu of the request, the petitioners were transferred to District Mau but only on the condition that they have to forgo their claim of promotion and be ready to work on the lower post of Assistant Teacher in Primary Schools. Ultimately they were demoted to the post of Assistant Teacher of Primary School on the ground that the candidates, who were similarly situated and working in District Mau, were not promoted till the date. Aggrieved, the petitioners came before the writ court with the complaint that they are getting lesser salary to the similarly situated batch mates.
4. Learned counsel for the appellants-respondents states that the order impugned is not tenable as the Writ Court has allowed the writ petition in terms of judgement passed in Abhay Kumar Pathak and others vs. State of U.P and others, Writ A No.10096 of 2021, which is not applicable as per the relief claimed by the petitioners. He further placed reliance on the judgement passed by the Division Bench in Special Appeal No.296/2019: Vinay Kumar and others vs. State of U.P. and others (arising out of Writ A No.22896/2018). In the said proceeding, the Division Bench had formulated the question, which is reproduced as under:-
"Whether an employee, who elects to avail of a benefit under an employer's concession, to which he is not entitled as of right under the Service Rules subject to specified disadvantages, can later on reprobate to retain the benefit, but forsake the coupled disadvantage?"
5. The same has been answered by the Division Bench in paragraph 16 of the judgement dated 11.03.2022 to the following effect:-
"16. In the circumstances, once the appellants want to retain the benefit of transfer that they have secured in terms of the Government Order dated 23.06.2016 to the districts of their choice, they cannot be permitted to take the benefit and rid themselves of the disadvantage that is coupled with it. The appellants cannot have the cake and eat it too. As the rights of the appellants stand, since they want to continue in the district of their choice after securing a transfer under the transfer policy carried in the Government Order dated 23.06.2016, to which they are otherwise not entitled as of right, they cannot claim restoration of their status or pay in the cadre to which they originally belonged. To permit the appellants to do so, would verily violate the firmly established principle that a party cannot be permitted to approbate and reprobate. This principle has been applied by the learned Single Judge in the judgment impugned in the leading appeal, particularly, relying on the decision of the Supreme Court in State of Punjab and others vs. Dhanjit Singh Sandhu, (2014) 15 SCC 144; and in our opinion, rightly so."
6. Learned counsel for the petitioners-respondents states that the issue in hand is no more res-integra as the same is already settled and the Learned Single Judge, in most arbitrary manner, without considering the said aspect of the matter allowed the writ petition in terms of Abhay Kumar Pathak (supra) and also accorded the relief to the petitioners to the effect 'that they are entitled for promotion pay and selection grade as per their entitlement including the previous services rendered by them for the above purposes' but no such relief was accorded in Abhay Kumar Pathak, which has been accorded by the Learned Single Judge while passing the order impugned.
7. For ready reference, the order dated 28.10.2021 passed in Writ A No.10096 of 2021 (Abhay Kumar Pathak and others vs. State of U.P. and others) is extracted as under:-
"All the petitioners were initially appointed as Assistant Teacher in Primary School run by the Basic Shiksha Parishad. Their services were governed by the U.P. Basic Education (Teachers) Service Rules, 1981. Having continued for sufficiently long, all the petitioners were promoted to the post of Headmaster in the primary institution or Assistant Teacher in the upper primary institution. It appears that the petitioners requested for their transfer to their desired district on the condition that they would be willing to forgo their claim of promotion and are ready to work on the lower post of Assistant Teacher. By noticing such undertaking given by the petitioners, they have been transferred from different districts to Jaunpur. They have been appointed as Assistant Teachers and are working as such. It is thereafter that the petitioners raised claim for pay protection on the ground that though they could be placed at the bottom of the seniority but the petitioners could not be denied the benefit of pay protection. It appears that a writ was filed before this Court i.e. Writ Petition No. 55588 of 2017 which was disposed of with a direction upon the Secretary to take a decision. It is stated that the Secretary has issued a direction to the effect that though petitioners could be placed at the bottom of the seniority but their salary cannot be reduced.
Reliance has been placed upon the last pay certificate issued to petitioners prior to their transfer to submit that reduction in salary payable to them is impermissible in law. Pursuant to the order passed by the Secretary, the District Basic Education Officer, Jaunpur has passed an order on 12.10.2018. This order has been assailed on the ground that there would be no justification for the respondents to reduce the salary payable to petitioners, even after their transfer to their desired district.
Petition is opposed by Sri Mrigraj Singh, learned counsel for the respondent.
Petitioners on account of their appointment as Assistant Teacher become a member either of the Rural area or Urban area as is defined under the Rules of 1981.The services of such teachers are in a District Level Cadre and ordinarily they are not to be transferred beyond the district. Submission is that the policy was promulgated by the State, permitting transfer to different district on the strength of the option exercised by the teachers concerned.
All the petitioners who were working on the promoted post have accordingly been transferred to Jaunpur as Assistant Teachers. They have given their specific consent to work on the lower post provided they are posted to their desired district.Their transfer is not on the post which they were holding at the time of such transfer. Having joined on the lower post, petitioners would be entitled to payment of salary admissible only to a Assistant Teacher and not the salary admissible for post of Headmaster / Assistant Teacher in Higher Primary School.
The concept of pay protection as is usually relied upon in service jurisprudence can not be attracted in the facts of the present case inasmuch as petitioners have voluntarily opted to join on a lower post only because they were getting district of their liking, to work. On account of their joining at Jaunpur they can at best of be entitled to salary on the lower post on which they are working by counting their previous tenure as Assistant Teacher in the earlier district. Petitioners cannot be permitted to blow hot and cold together inasmuch as they on the one hand have given up their benefit of promotion yet wants to retain the higher salary admissible for the promoted post. The claim otherwise is opposed to the principal of approbate and reprobate. Petitioners have otherwise been granted benefit of personal pay on the post of Assistant Teacher and no further relief can be granted to them. Petitioners will also be entitled promotional pay etc. as per their entitlement and the previous services rendered such be counted for that purposes.
Subject to the above observations made, this writ petition fails and is, accordingly, dismissed."
8. We have the occasion to peruse the record and find substance in the arguments advanced by learned counsel for the appellants-respondents as the issue in hand pertains to pay protection to the incumbents, who were willingly transferred to their choice of posting after foregoing claim of promotion on the lower post of Assistant Teacher in Primary School. The Division Bench of this Court has already settled the said issue in Vipin Kumar (Supra). In our view, the concept of pay protection, as is usually relied upon in service jurisprudence, cannot be attracted in the facts of the present case inasmuch as petitioners-respondents have voluntarily opted to join on a lower post in the district of their liking and the petitioners cannot be permitted to blow hot and cold together, which is also in contravention of doctrine of estoppel. Even the relief accorded by the learned Single Judge is also not justifiable as the same was not accorded while passing the order in Abhay Kumar (supra).
9. Confronted with this situation, learned counsel for the contesting respondents-petitioners fairly states that the matter be relegated to the Learned Single Judge so that the present matter be considered as per law.
10. Considering the facts and circumstances, the order impugned is set aside. The Special Appeal is allowed and the matter is relegated to the Learned Single Judge to decide the same on merit. Meanwhile, the appellants-respondents are accorded four weeks time to file response in the writ petition. Rejoinder Affidavit, if any, may be filed within a week thereafter. The matter be listed after five weeks before the learned Single Judge.
Order Date :- 22.5.2024
A. Pandey
