Court No. - 34
Case :- SPECIAL APPEAL No. - 20 of 2009 Appellant :- Chandra Bhan Awasthi And Others Respondent :- State Of U.P. And Others Counsel for Appellant :- Irshad Ali,Ashok Khare,Bhawesh Pratap Singh,Rajendra Kumar Pandey,Rajiv Kumar Singh,Santosh Yadav,Udai Chandani,Veer Singh Counsel for Respondent :- C.S.C.,H.K. Shukla,K. Shahi,P.N. Tripathi
Hon'ble Sudhir Agarwal,J. Hon'ble Rajendra Kumar-IV,J.
1. Heard Sri V.K.Singh, Senior Advocate assisted by Sri Bhawesh Pratap Singh, learned counsel for appellants, Ms. Subhash Rathi, learned Additional Chief Standing Counsel for State of U.P. and perused the record.
2. This intra Court Appeal has arisen from judgment dated 27.11.2008 passed by learned Single Judge dismissing writ petition with heavy cost. The appeal was also dismissed by a Division Bench consisting of Hon'ble Shiva Kirti Singh, CJ (as His Lordship then was), and Hon'ble Dilip Gupta, J., vide order dated 29.4.2013 whereagainst the matter was taken to Supreme Court in Civil Appeal No. 279 -280 of 2017. Supreme Court has allowed appeal and matter has been remanded to this Court vide judgment dated 10.01.2017, which reads as under :
“Heard learned counsel for the parties. Leave granted.
The question considered in the impugned order is whether the appellants are entitled to payment of salary under the provisions of the Uttar Pradesh High Schools & Intermediate Colleges (Payment of Salaries of Teachers & Other Employees) Act, 1971. It has been brought to our notice that after the impugned judgment of the High Court, the larger Bench of this Court in State of Uttar Pradesh & Ors. Vs. Pawan Kumar Divedi & Ors. (2014) 9 SCC 692 has pronounced on the issue and the High Court did not have the benefit of considering the said judgment. In view thereof, we consider it appropriate that the High Court may consider the matter afresh. Accordingly, we set aside the impugned order of the High Court and remand the matter to the Division Bench of the High Court for fresh consideration in accordance with law.
The appeals are, accordingly, allowed in above terms.
The parties are directed to appear before the Division Bench of the High Court for further proceedings on 20th February, 2017.”
3. The dispute is whether appellants are entitled for payment of salary under the provisions of Uttar Pradesh High Schools and Intermediate Colleges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (hereinafter referred to as “Act, 1971”).
4. The appellants' claim that they are teachers of Primary Section of Junior High School, which was upgraded to High School in 1990. The ground taken by learned Senior Counsel is that once Junior Section is part and parcel of High School of Secondary Educational Institution, teachers of Junior High School are also liable to be treated at par with teachers of Secondary Institution, and they are entitled for payment of salary under Act, 1971 since Junior Section is part and parcel of Secondary Educational Institution. For this purpose reliance is placed on three Judges judgment of Supreme Court in State of U.P. and others Vs. Pawan Kumar Divedi and others (2014) 9 SCC 692.
5. Learned counsel for appellants has also filed supplementary affidavit placing on record documents showing that Junior High School was recognized by District Basic Education Officer's letter dated 06.09.1972 and the same has continued thereafter.
6. The legal position has been clarified by Supreme Court in State of U.P. and others Vs. Pawan Kumar Divedi and others (supra), in our view, the same has to be given effect to. Factual aspect however need be examined by Director of Education (Secondary), who will also examine applicability of Act, 1971 in the light of Supreme Court Judgement in State of U.P. and others Vs. Pawan Kumar Divedi and others (supra).
7. In view of the above, judgment of learned Single Judge dated 27/11/2008, is set aside. Writ petition is disposed of directing Director of Education (Secondary) to examine entitlement of petitioners for payment of salary in view of provisions of Act, 1971, in the light of law laid down by Apex Court in State of U.P. and others Vs. Pawan Kumar Divedi and others (supra) and pass a reasoned order within three months from the date of production of a certified copy of this order before him. If, Director of Education (Secondary) finds that appellants are entitled for payment of salary under Act, 1971, consequence shall be given effect to without any further delay.
8. The appeal stands allowed in the manner, stated above.
Order Date :- 22.1.2019 KA