Court No. - 33
Case :- WRIT - A No. - 10096 of 2021 Petitioner :- Abhay Kumar Pathak And 5 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ram Pravesh Yadav,Bhagwan Dutt Pandey Counsel for Respondent :- C.S.C.,Mrigraj Singh
Hon'ble Ashwani Kumar Mishra,J.
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.
Order Date :- 28.10.2021 n.u.