Allahabad High Court
Smt. Krishna Raina vs State Of U.P. Thru Prin.Secy. Secondary ... on 12 March, 2025
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:15409
Reserved
In Chamber
Case :- WRIT - A No. - 18208 of 2019
Petitioner :- Smt. Krishna Raina
Respondent :- State Of U.P. Thru Prin.Secy. Secondary Edu. Lucknow And Ors
Counsel for Petitioner :- Ambika Prasad
Counsel for Respondent :- C.S.C.,Aishwarya Pratap Singh
Hon'ble Rajeev Singh,J.
1. Heard Sri Ambika Prasad, learned counsel for the petitioner, Sri Ratnesh Singh Tomar, learned Standing Counsel and Sri Aishwarya Pratap Singh, learned counsel for the respondent no.5.
2. The present petition is filed with the following prayer :-
"(i) issue a writ, order or direction in the nature of certiorari quashing the order dated 26.4.2019 passed by the opposite party no.4, contained in Annexure No.1 to the writ petition, with consequential benefits.
(ii) issue a writ, order or direction in the nature of mandamus commanding the opposite parties particularly the opposite party No.4 to pay and disburse the arrears of salary for the post of Assistant Teacher L.T. Grade for the period from 19.5.2003 to 30.6.2006 and further to grant pension of the petitioner with effect from 01.07.2006 for the post of Assistant Teacher L.T. Grade and also to pay the arrears of pension payable to the petitioner with effect from 01.07.2006 alongwith interest @ 18 % per annum."
3. Learned counsel for the petitioner has submitted that petitioner has completed her B.T.C. and was appointed as Assistant Teacher in Primary Section of Sahai Singh Balika Vidyalaya Inter College, Narahi, Lucknow, which is duly recognized under the provisions of Intermediate Education Act, 1921 and regulations framed there under. The college is also under grant in aid scheme and the salary of teachers and other employees of the college was being paid in accordance with the provisions of the High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971. He further submitted that State Government, in exercise of powers under Sub Section (2) of Section 16 of the Intermediate Education Act, 1921, vide G.O. No.259/15-7-2003-1(3)/2003 dated 17.2.2003 granted sanction to the amendment in regulation 7(2) of the Regulations made by the Board for appointment of Principals and Teachers of the Institutions. The said amendment was notified by the Board vide notification No.Parishad-9/741 dated 26.2.2003 published by the State Government in official gazette on 1.3.2003, which provides that the Committee of Management of those Intermediate Colleges and Higher Secondary Schools, in which, primary classes are running and teachers of primary section are getting salary under the provisions of the High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971, shall fill up 25% vacancies available in the L.T. Grade in the college by promotion amongst those teachers of primary section who are trained graduate and have completed five years satisfactory services in that capacity and the Committee of Management shall intimate such promotion to the Inspector immediately.
4. The amended provisions of regulation 7(2) of the Regulations made by the Board for appointment of Principal and Teachers of the institutions, notified by the Board on 26.2.2003 is as under :-
5. Learned counsel for the petitioner has submitted that 16 vacancies were available in the college in L.T. Grade, therefore, in view of the amended provisions of regulation 7(2-A) of the Regulations of Board, four vacancies were to be filled from amongst the eligible teachers of primary section of the college. Since the petitioner fulfilled the eligibility criteria for promotion from B.T.C.. Grade to L.T. Grade, the Committee of Management of the College vide its resolution dated 18.5.2003 considered her claim and granted promotion to L.T. Grade alongwith three others teacher, namely, Smt. Sampatti Devi, Smt. Hema Pathak and Smt. Sarla Bajpai. The manager of the college intimated the resolution to the District Inspector of Schools vide its letter dated 19.5.2003 but the District Inspector of Schools had not passed any order for payment of salary to the petitioner for the promoted post, in the meantime, petitioner retired from the services on attaining the age of superannuation on 30.6.2006 but the salary for the promoted post w.e.f. 19.5.2003 to 30.6.2006 was not paid.
6. He further submitted that as per the resolution dated 18.5.2003, Smt. Hema Pathak was also promoted, she was retired on 30.6.2003 and requested for arrears of salary for the post of L.T. Grade, her request was forwarded to the District Inspector of Schools by the Principal of College but no attention was paid, then she raised her claim before this Court in Writ Petition No.3835 (S/S) of 2008 and after exchange of affidavits, writ petition was allowed and the Hon'ble Single Judge hold that Regulation 7(2-A) made by the Board for appointment of Principal and Teachers of the institutions, makes it clear that after promotion made by the Committee of Management, only intimation is to be made to the District Inspector of Schools and no approval of the District Inspector of Schools is needed, direction was also given to the authorities to pay the difference of salary to the petitioner, which is admissible to the Assistant Teacher L.T. Grade and also to pay all other benefits which are admissible under the law.
7. The order dated 16.1.2013 passed in Writ Petition No.3835 (S/S) of 2008 is as under:-
Heard learned counsel for the parties and perused the record.
By means of instant writ petition, the petitioner has made the following prayer:-
"(i) a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to grant pension of the petitioner with effect from 1.7.2003 in the pay scale admissible to the post of Assistant Teacher of L.T. Grade, on which she was promoted by the Committee of Management of the College, in accordance with law;
(ii) a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to pay and disburse the arrears of salary for the period from 19.5.2003 to 30.6.2003 and the arrears of regular pension payable to the petitioner with effect from 1.7.2003 along with interest @ 18% per annum;
(iii) a writ, order or direction in the nature of certiorari quashing the order dated 24.5.2007 passed by the opposite party no.3, as contained in Annexure No.9 to the writ petition."
Brief facts necessary for disposal of the instant writ petition are that the petitioenr was appointed as Assistant Teacher (B.T.C. Grade) in Primary Section of Sahai Singh Balika Vidyalaya Inter College, Narahi, Lucknow.
The State Government in exercise of powers under sub-section (2) of Sec;ion 16 of the Intermediate Education Act, 1921 vide G.O. No. 259/15-7-2003-1(3)/2003 granted sanction to the amendment in regulation 7 (2) of the Regulations made by the Board for appointment of Principal and Teachers of the institutions. This amendment was notified by the Board vide notification No. Parishad-9/741 dated 26th February 2003 and published by the State Government in the official gazette dated 1st March, 2003. It provides that the Committee of Management of those Intermediate Colleges and Higher Secondary Schools in which primary classes are running and teachers of primary section are getting salary under the provisions of U.P. Hgih School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971, shall fill the vacancies available in L.T. Grade in the College by promotion to the extent of 25% from amongst those teachers of primary section who are trained graduate and have completed 5 years' satisfactory services in that capacity and the Committee of Management shall intimate the Inspector of such promotion.
Thereafter on 18.5.2003 the Committee of Management of the College passed resolution granting promotion to the petitioner along with three others on the post of Assistant Teacher in L.T. Grade under 25% quota reserved for promotion from teachers of Primary Section.
In 19.5.2003 the Manager of the College intimated the promotion of the petitioner to the District Inspector of Schools as required by regulation 7(2) of the Regulations. The petitioner attained the age of superannuation on 30.6.2003 but neither he was paid difference of salary of L.T. Grade from the date of his promotion nor pension as admissible to L.T. Grade Teacher was sanctioned in his favour. Feeling aggrieved thereby the instant writ petition has been filed.
The grievance of the petitioner is that under the Regulation 7(2-A) it is only intimation which is to be furnished by the Management to the DIOS and prior or subsequent approval of DIOS is not required for the purpose of promotion under the reserved quota for promotion of the teachers of the Primary Schools. Since her promotion was duly communicated to the DIOS, therefore, she was entitled for pay of the L.T. Grade teacher and also consequential benefits.
In the counter affidavit, it is submitted that promotion of the petitioner was not approved by the DIOS and the same could not be implemented and the petitioner retired from service on 30.6.2003, as such the petitioner was never promoted on the post of Assistant Teacher L.T. Grade. It is further submitted that since the petitioner was not promoted, therefore, under the rules she was not entitled for the pension because the pension to such class of teachers was made admissible vide G.O. dated 28.1.2004 and prior to that date petitioner stood retired.
The entire controversy in this case revolves around the provision under Chapter II, 7(2-A) of Regulation of Board which provides as under:-
"[2-A] Aise Intermediate College evam High School jinse sambaddh Primary Anubhag ke adhyapak Uttar Pradesh High School tatha Intermediate College (Adhyapakon tatha anya karmchariyon ke vetan bhugtan) aDhiniyam 1971 ke pravidhanon ke antargat vetan bhugtan prapt karte hain, men uplabdh prashikshit snatak shreni ke kul padon ke 25 partishat pardon ko prabandh samiiti dwara sambaddh Primary anubhag mein karyarat aise adhyapakon se padonnati dwara bhara jayega, jinohne primary adhyapak ke rup mein panch varshon ki sewa puri kar li hai tatha wah prashikshit snatak ho aur aise padonnati ki suchana nirikshak ko turant di jayegi.
3. Yadi nirikshak ko yeh vishwas karne ka karan ho ki khand (2) ke adhin koyee padonati ukt adhiniyam aur viniyamon ke ullanghan mein ki gayee hai to is nimitt ki ja sakne wali kisi anya karyawahi par partikul prabhaw dale bina wah mamle ka nirdesh nideshak ko kar sakta hai jiska vinishchaya is vishay mein antim hoga."
A perusal of the aforementioned regulation 7(2-A) makes it clear that it only provides for giving an intimation to DIOS and such promotion does not require the prior approval of DIOS. In the facts of the instant case, the DIOS had not taken any decision on such proposal which was neither rejected nor any reason was given as to why promotion of the petitioner is irregular. nor the matter was referred to director. The aforementioned regulation requires only the intimation, which was duly given to the DIOS concerned. Therefore, the submission of learned counsel for the opposite parties that in absence of approval by the DIOS the petitioner cannot be treated to have been promoted on the post of Assistant Teacher L.T. Grade, therefore, she is not entitled to pay difference of salary and other benefits which is admissible to the Assistant Teacher L.T. Grade has no legs to stand. This defence by the opposite parties is not tenable in view of the aforementioned regulation. Because no illegality or irregularity was pointed out by the D.I.O.S. in the said promotion.
Therefore, this writ petition deserves to be allowed and is, accordingly, allowed. The opposite parties are hereby directed to pay difference of salary to the petitioner which is admissible to the Assistant Teacher L.T. Grade. She shall also be entitled for all other benefits which are admissible to Assistant Teacher L.T. Grade under law. Compliance of this order shall be ensured within a period of three months from the date a certified copy of this order is produced before them.
8. Learned counsel for the petitioner submits that aforesaid judgment was challenged before the Division Bench of this Court in Special Appeal (Defective) No.477 of 2013 and same was dismissed on 24.1.2017 with the cost of Rs.5,000/-.
9. The order dated 24.1.2017 passed in Special Appeal (Defective) No.477 of 2013, reads as under:-
1. Heard learned Standing Counsel for appellants and Sri A.P. Ojha, Advocate, for respondents.
2. Only question up for consideration is whether petitioner-respondent, Smt. Hema Pathak, was rightly promoted by Committee of Management vide resolution dated 18.05.2013 in view of amended Regulation 7(2), Chapter III of Regulations framed under U.P. Intermediate Education Act, 1921 (hereinafter referred to as "Act, 1921'). It is not in dispute that within the quota prescribed for Teachers of Primary Section, who were trained and otherwise eligible, Committee of Management passed resolution dated 18.05.2003 promoting petitioner-respondent, Smt. Hema Pathak, as Assistant Teacher, L.T. Grade. The intimation of said promotion was conveyed to District Inspector of Schools (hereinafter referred to as "DIOS") vide Manager's letter dated 19.05.2003. However, DIOS did not recognize the aforesaid promotion and denied salary to petitioner-respondent, Smt. Hema Pathak, on the ground that she retired on 30.06.2003 and had already attained age of superannuation before the date of resolution of promotion and since was continuing under benefit of Statute permitting continuance till the end of Session, she was not entitled for such promotion. This has not been accepted by learned Single Judge in the order dated 16.01.2013 wherein denial of salary was attempted to be justified only on the ground of absence of approval by DIOS.
3. Court found that there was no provision under which any approval of DIOS for promotion was required. Before this Court, State has argued a new point that respondent-1 attained age of superannuation on 09.11.2002 and thereafter was continuing till the end of session under Regulations, but since she had already attained age of superannuation, she could not have been granted promotion thereafter.
4. The extension of service till the end of Session for all purposes is part of service and incumbent is treated to have retired at the end of Session. Therefore, if before such retirement any benefit including promotion becomes due, the same cannot be denied, unless there is a specific provision which permits that after attaining age of superannuation, if a Teacher is continuing with extended benefit of service till the end of Session, such Teacher would not be entitled for additional benefit like promotion etc., but no such provision exists and none has been shown to us.
5. In view thereof, we do not find any flaw, legal or otherwise, in the impugned judgment warranting interference.
6. The appeal lacks merits. Dismissed with cost quantified to Rs. 5,000/-.
10. Learned counsel for the petitioner has submitted that representation of the petitioner was also rejected by the District Inspector of Schools, Lucknow on 26.4.2019 (annexed as Annexure No.1) and in the aforesaid order, it is mentioned that resolution of Committee of Management was sent to the Joint Director of Education (Secondary), U.P., VIth Region, Lucknow, he examined the resolution and communicated the decision vide letter dated 24.5.2007 with the observation that no decision can be taken in relation to Smt. Krishna Raina, Smt. Hema Pathak because they had already superannuated. Admittedly, decision on the resolution of Committee of Management dated 18.5.2003 was taken by the Joint Director of Education (Secondary), U.P., VIth Region, Lucknow on 24.5.2007, as Smt. Hema Pathak attained the age of superannuation on 30.6.2003 and petitioner attained the age of superannuation on 30.6.2006, therefore, it was obligatory on the part of the respondent authorities to pay the salary to the promoted teachers until the resolution is not set aside.
11. Learned counsel for the petitioner also submitted that in the identical circumstances, the arrears of salary has already been paid to Smt. Hema Pathak, therefore, present petitioner is also entitled for the same in terms of the judgment of this Court in the case of "Smt. Hema Pathak Vs. State of U.P.".
12. Learned counsel for the Committee of Management does not dispute the fact that Committee of Management is the competent authority to consider the matters of promotion of the teachers working in B.T.C. Grade to L.T. Grade in pursuance of regulation 7(2-A) of the Regulations. He further submitted that promotion was considered on 18.5.2003 in relation to Smt. Krishna Raina (petitioner), Smt. Sampatti Devi, Smt. Hema Pathak & Smt. Sarla Bajpai and information was given to the District Inspector of Schools, Lucknow and he has to pass order for salary of teachers in L.T. Grade in accordance with the provisions of High School and Intermediate Colleges (Payment of Salary to Teachers and other Employees) Act, 1971. He does not dispute the fact that Smt. Hema Pathak has already been granted arrears of salary and all other consequential benefits by order of this Court dated 16.1.2013 passed in Writ Petition No.3835 (S/S) of 2008.
13. Learned standing counsel vehemently opposed the prayer of the petitioner and submitted that promotion of all the four teachers was referred by the District Inspector of Schools, Lucknow to Joint Director of Education (Secondary), U.P., VIth Region, Lucknow, who decided the same vide its letter dated 24.5.2007 but he admitted that due to superannuation of petitioner as well as Smt. Hema Pathak, their claim was not considered and order for payment of salary regarding two other teachers, namely, Smt. Sampatti Devi & Smt. Sarla Bajpai was passed. He does not dispute the fact that in the case of Smt. Hema Pathak, her arrears and salary has already been paid in compliance of the direction of the writ court and also unable to explain that why any approval for promotion is needed once regulation 7(2-A) of the Regulation clearly authorized the Committee of Management for promotion in L.T. Grade. He also conceded this fact that controversy related to the approval was already considered by Single Judge, which is upheld by the Division Bench that no approval for promotion is needed from the District Inspector of Schools.
14. Considering the submissions of learned counsel for the parties, going through the contents of the petition, counter affidavit as well as other relevant records of the Committee of Management and District Inspector of Schools, Lucknow, it is undisputed fact that on 18.5.2003 in terms of regulation 7(2-A) of Regulations, four teachers, namely, Smt. Krishna Raina (petitioner), Smt. Sampatti Devi, Smt. Sarla Bajpai and Smt. Hema Pathak were promoted and information was given to the District Inspector of Schools, Lucknow but he did not allowed the promoted pay scale to the them and referred the aforesaid resolution to Joint Director of Education (Secondary), U.P., VIth Region, Lucknow, in the meantime, on attaining the age of superannuation, Smt. Hema Pathak was retired on 30.6.2003 & petitioner was retired on 30.6.2006. Due to retirement of the petitioner and Smt. Hema Pathak, their promotion was not considered for payment of salary but salary for the promotional post was paid to rest of the two teachers, namely, Smt. Sampatti Devi & Smt. Sarla Bajpai, as a result, Smt. Hema Pathak filed Writ Petition No.3835 of 2008, which was allowed on 16.1.2013 with the observation that regulation 7(2-A) of the Regulations clearly provides that after promotion Committee of Management will give intimation to the D.I.O.S. as no approval of D.I.O.S. on promotion is needed and he has to pass order to pay salary to the teachers for promoted post. In such circumstances, this Court is of the view that order dated 26.4.2019 passed by District Inspector of Schools II, Lucknow is in utter violation of regulation 7(2-A) of the Regulations of the Board, accordingly, same is liable to be quashed.
15. In view of the above, the present writ petition is allowed and order dated 26.4.2019 is hereby, quashed and opposite parties are directed to pay the difference of salary to the petitioner, which is admissible to the Assistant Teacher in L.T. Grade alongwith all the consequential benefits alongwith interest @ 10% per annum.
16. Compliance of this order be ensured within a period of three months from the date of certified copy produced before the respondent authorities.
17. Photo copy of the records provided by learned Standing Counsel as well as learned Committee of Management be returned to them, forthwith.
Order Date :- 12 March, 2025.
Gaurav/-
