Court No. - 32
Case :- WRIT - A No. - 9506 of 2019 Petitioner :- Nagendra Singh And Another Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Neeraj Shukla Counsel for Respondent :- C.S.C.,Sanjay Kumar
Hon'ble Prakash Padia,J.
Heard Sri Neeraj Shukla, learned counsel for the petitioners. Learned Standing Counsel has accepted notice on behalf of respondent no.1 and Sanjay Kumar put his appearance on behalf of respondents no.2, 3 and 4.
The present writ petition has been filed with the prayer to quash the order dated 26.4.2019 passed by the respondent no.3/District Basic Education Officer, Shamli (annexure 7 to the writ petition) with further prayer to direct the respondents to pay salary to the petitioner on the basis of Grade Pay 4600/-, the grade pay which was being given prior to inter district transfer, w.e.f. the date of transfer dated 21.8.2016 in the District Shamli and direct the respondents to ensure the petitioners to join on the post of Head Master in Primary School/Assistant Teacher in Junior High School, the post was being hold prior to inter- district transfer.
From perusal of the record it reveals that petitioner has earlier filed a writ petition being Writ A No.55579 of 2017 (Pawan Kumar and 8 others Vs. State of U.P. and others) in which following order was passed :-
“By means of this writ petition the petitioners have come to this Court raising a grievance that they are all Teachers of Primary Schools run by the Basic Education Board. They were promoted on the post of Headmaster in various institutions and thereafter transferred to Shamli. When they went to join the institution they were told that there is no vacancy of Headmaster and, therefore, they must get themselves demoted to the post of Assistant Teachers then they can be adjusted on transferred post.
Learned counsel for the petitioners submits that at the time when transfer order was passed there were vacancies in the institution of Headmasters, but hurriedly that were filled up by promotion. As such, the petitioners' claim could not have been rejected.
I have considered the submissions of learned counsel for the petitioners, Shri Sanjay Kumar, learned counsel appearing for the respondents no.
2 and 3 as well as the learned Standing Counsel appearing for the State-respondent no. 1.
The writ petition is disposed of with the observation that in case the petitioners make a representation to the District Basic Education Officer, Shamli, the same shall be considered in accordance with law considering the vacancies in various institutions where the petitioners were transferred. The said decision shall be taken, as far as possible, within a period of four months from the date a certified copy of this order along with representation is presented before it.”
Pursuant to the same a decision has been taken by the District Basic Education Officer, Shamli/respondent no.3 rejecting the claim of the petitioner.
From perusal of the order impugned it appears that before passing the aforesaid order the instructions were called for by the District Basic Education Officer from the Secretary, U.P. Basic Shiksha Parishad vide letter dated 11.5.2018. It is further stated in the aforesaid order that no instructions were received by him and as such the claim set up by the petitioner was rejected by the respondent no.3 vide its order dated 26.4.2019.
Learned counsel for the petitioner relied upon a judgment rendered by a Co-ordinate Bench of this Court in Writ A No.25804 of 2018 (Vivek Kumar and 4 others Vs. State of U.P. and 3 others) decided on 6.12.2018. The order passed in the aforesaid writ petition is quoted below:-
"1. Heard learned counsel for the parties.
2. The petitioners have approached this Court with a prayer that though they have under compulsion adopted position lower in rank to what they were enjoying at the time of transfer from one district to another district and now just because they were getting a preferred district choice, they are now further forced to get lower pay admissible to the post to which they have joined.
3. The argument advanced by learned counsel for the petitioners is that though the petitioners have been forced to join lower rank only on account of the fact that the teachers of their batch have not been promoted. Accordingly, the argument is that the respondents cannot force them to get lesser salary. They were being paid grade pay of Rs. 4600/- at the time of transfer, now they are being forced to accept pay grade of Rs. 4200/-.
4. This Court in a large number of writ petitions has issued direction to the concerned authorities to look into the matter of protection of pay: pay scale and pay grade in respect of such teachers who have been forced to accept lower position on account of preferred district transfer.
5. Learned counsel for the petitioners has drawn the attention of the Court to a letter-cum-order of the Secretary, U.P. Basic Education Board, Allahabad dated 23.07.2018, wherein the following directions have been issued in respect of pay protection of such teachers:-
^^mDr ds lEcU/k eas lP;w gS fd ;kphx.kksa dks Pay Protection dk ykHk fn;k tkuk pkfg,A vr% ,y-ih-lh- ¼vfUre osru izek.k i= ½ ds vk/kkj ij u;s tuin eas ors u dk vkxeu dj Pay Protection ds fu;eksa dk ikyu fd;k tkuk pkfg,A pwafd inksUur izkIr f'k{kd viuh ethZ ls LFkkukUrfjr gksdj vk;s gSa ,slh fLFkfr eas LFkkukUrfjr tuin eas mudh T;s"Brk ftl in ij ;ksxnku fn;s gS@ dk;ZHkkj xzg.k fd;s gSa mlh in ij lcls uhps gh j[kk tk;sA mDr ds lEcU/k eas vkidks funsZf'kr fd;k tkrk gS fd ;kphx.kkas dks vfUre osru izek.k i= ¼,y-ih-lh- ½ ds vk/kkj ij osru vkx.ku dj Pay Protection ds fu;ekas dk ikyu djrs gq, ors u Hkqxrku djus dh dk;Zokgh dj ek0 mPp U;k;ky; ds vkns'k dk vuqikyu lqfuf'pr djasA^^
6. However, the petitioners contend that though they have been representing the authorities but no action has been taken. In the opinion of Court, the District Basic Education Officer concerned is hide bound in law to carry out the directions issued by the Secretary, U.P. Basic Education Board, Allahabad vide his letter-cum-order dated 23.07.2018.
7. In view of the above, direction is issued to respondent no. 2, 3 & 4 to ensure compliance of directives issued by Secretary, U.P. Basic Education Board, Allahabad vide his letter-cum-order dated 23.07.2018, in accordance with law, if there is no other legal impediment. He shall take decision in the matter in any case positively within six weeks from the date of production of certified copy of the order.
8. The writ petition stands disposed of."
From perusal of the aforesaid it is clear that the Secretary, U.P. Education Board, Allahabad, already issued instructions on 23.7.2018. It appears from perusal of record that while passing the order impugned the aforesaid instructions issued by the Secretary, U.P. Education Board, Allahabad, was not taken into consideration.
In the facts and circumstances of the case and with the consent of learned counsel for the parties, the order dated 26.4.2019 passed by the respondent no.3/District Basic Education Officer, Shamli (annexure 7 to the writ petition) is liable to be set aside and the same is hereby set aside.
In the facts and circumstances of the case, the present writ petition is also disposed of directing the respondents to ensure the compliance of the directives issued by the Secretary, U.P. Basic Education Board, Allahabad vide his letter dated 23.07.2018 in accordance with law, if there is no other legal impediment. It is further provided that the aforesaid respondents shall take a decision in the matter positively within six weeks from the date of production of certified copy of this order.
With the aforesaid observations, the present writ petition is disposed of.
Order Date :- 4.6.2019 Pramod Tripathi