Court No. - 58
Case :- WRIT - A No. - 45692 of 2017 Petitioner :- Ashok Singh Chauhan And 145 Ors.
Respondent :- State Of U.P. And 3 Ors.
Counsel for Petitioner :- Lavlesh Kumar,Ashok Khare Counsel for Respondent :- C.S.C.,Ras Bihari Pradhan
Hon'ble Ashwani Kumar Mishra,J.
1. Following prayers have been made in the writ petition:-
"(a) a writ, order or direction of a suitable nature commanding the respondents not to interfere in the working of the petitioners as regular Assistant Teachers of Junior Basic Schools run by Board of Basic Education in District Ghazipur and to pay the petitioners their salary in the regular pay scale regularly every month; or alternatively commanding the respondents to sanction and disburse the salary to the petitioners at par with regularly appointed Assistant Teachers of Junior Basic Schools run by Board of Basic Education or at least at the minimum of the pay scale applicable to such regular Assistant Teachers, regularly every month along with all allowances payable thereon;
(b) a writ, order or direction of a suitable nature commanding the respondents not to cause any discrimination in payment of salary to the petitioners vis-a-vis regularly appointed Assistant Teachers and to take a decision in this regard in consonance with the principles of law enunciated by Supreme Court in 2017 (1) SCC 148 (State of Punjab Vs. Jagjit Singh) forthwith;"
2. Learned Senior Counsel for the petitioner states that though petitioners are continuing as Shiksha Mitra, but they are entitled to payment of salary, which is payable to Assistant Teacher, as they are performing the work of Assistant Teacher. Reliance is placed upon a judgment of the Apex Court in State of Punjab and others Vs. Jagjit Singh and others, reported in 2017 (1) SCC 148, wherein following observations have been made in para 60:-
"60. Having traversed the legal parameters with reference to the application of the principle of "equal pay for equal work", in relation to temporary employees (daily-wage employees, ad hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the employees concerned (before this Court), were rendering similar duties and responsibilities as were being discharged by regular employees holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of "equal pay for equal work" summarised by us in para 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals were appointed against posts which were also available in the regular cadre/establishment. It was also accepted that during the course of their employment, the temporary employees concerned were being randomly deputed to discharge duties and responsibilities which at some point in time were assigned to regular employees. Likewise, regular employees holding substantive posts were also posted to discharge the same work which was assigned to temporary employees from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State that any of the temporary employees would not be entitled to pay parity on any of the principles summarised by us in para 42 hereinabove. There can be no doubt, that the principle of "equal pay for equal work" would be applicable to all the temporary employees concerned, so as to vest in them the right to claim wages on a par with the minimum of the pay scale of regularly engaged government employees holding the same post."
It is stated that petitioners are, therefore, entitled to payment of salary in minimum of pay scale admissible to an Assistant Teacher.
3. Petition is opposed by learned Standing Counsel. It is stated that petitioners are not entitled to the relief prayed for, as the same would be in consistent with the direction of the Hon'ble Supreme Court in State of U.P. and another Vs. Anand Kumar Yadav and others, reported in 2017(3) ESC 570.
4. It is not in dispute that petitioners were initially appointed as Shiksha Mitra and were later absorbed as Assistant Teacher. The absorption of petitioners as Assistant Teacher was the subject matter of challenge before this Court and a Full Bench of this Court in Shivam Ranjan and Others Vs. State of U.P. and Others, reported in 2015(3) UPLBEC 2297, has been pleased to hold as under in para 118:-
"118. For all these reasons, we allow the writ petitions in the following terms:
(i) The amendment made by the State Government by its notification dated 30 May 2014 introducing the provision of Rule 16-A in the Uttar Pradesh Right of Children to Free and Compulsory Education Rules, 2011 by the Uttar Pradesh Right of Children to Free and Compulsory Education (First Amendment) Rules 2014 is held to be arbitrary and ultra vires and is quashed and set aside;
(ii) The Uttar Pradesh Basic Education (Teachers) Service (Nineteenth Amendment) Rules 2014, insofar as they prescribe as a source of recruitment in Rule 5(2) the appointment of Shiksha Mitras; the academic qualifications for the recruitment of Shiksha Mitras in Rule 8(2)(c) and for the absorption of Shiksha Mitras as Assistant Teachers in junior basic schools under Rule 14(6) are set aside as being unconstitutional and ultra vires; and
(iii) All consequential executive orders of the State Government providing for the absorption of Shiksha Mitras into the regular service of the State as Assistant Teachers shall stand quashed and set aside."
5. The judgment of Full Bench was then assailed by the State of Uttar Pradesh before the Hon'ble Supreme Court, and the matter has been decided by the Apex Court vide judgment in State of U.P. and another Vs. Anand Kumar Yadav and others, reported in 2017(3) ESC 570. The Full Bench judgment of this Court has been approved by the Apex Court, and following observations have been made in para 26:-
"26. Question now is whether in absence of any right in favour of Shiksha Mitra, they are entitled to any other relief of preference. In the peculiar facts situation, they are to be given opportunity to be considered for recruitment if they have acquired or they now acquire the requisite qualification in term of advertisement for recruitment for next two consecutive recruitments. They may also be given suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. Till they avail of this opportunity, the State is at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides."
6. Absorption of the petitioners have already been set aside and the finding of the Full Bench that engagement of Shiksha Mitra was purely contractual in nature and was otherwise in consistent with Articles 14 and 16 of the Constitution of India, has been affirmed. The only protection granted to such persons is as specified in para 26. An opportunity has been granted to such persons to participate pursuant to advertisements issued for appointment on the post of Assistant Teacher in two consecutive recruitments. Provision has also been made for grant of suitable age relaxation and some weightage for their experience as may be decided by the concerned authority. It has lastly been observed that till the petitioners avail of such opportunity, the State shall be at liberty to continue them as Shiksha Mitras on same terms on which they were working prior to their absorption, if the State so decides.
7. In terms of liberty granted by the Apex Court, a Government Order dated 20th September, 2017 allowing such persons to continue as Shiksha Mitra has been issued, which is not even challenged. The terms of engagement, therefore, cannot be questioned by the petitioners. The judgment in Jagjit Singh (supra) cannot be pressed into service in the peculiar facts and circumstances, inasmuch as field is already occupied and the limited protection granted to the Shiksha Mitra stands specified by the Apex Court itself. Any direction to allow the petitioners' payment of salary on the post of Assistant Teacher would be going beyond what is provided by the Apex Court. Rather, the order of the Apex Court may have the effect of being varied by this Court, which would be impermissible.
8. Writ petition is, accordingly, dismissed.
Order Date :- 30.4.2018 Anil