Reserved
Court No. - 6
Case :- WRIT - A No. - 40733 of 2013 Petitioner :- Rajpal Singh Respondent :- State Of U.P.& 4 Ors.
Counsel for Petitioner :- Siddharth Khare,Ashok Khare Counsel for Respondent :- C.S.C.
Hon'ble B. Amit Sthalekar,J.
Heard Shri Siddharth Khare, learned counsel for the petitioner, Shri Hare Ram Tripathi, learned Standing Counsel for the respondents no.1 & 2 and Shri Pradeep Kumar Singh, learned counsel for the respondents no.3 & 4.
The petitioner in the writ petitioner is seeking quashing of the order dated 27.06.2013 whereby his representation dated 04.04.2013 for payment of arrears of salary has been rejected.
As per the averments in the writ petition the case of the petitioner is that he was appointed as Assistant Teacher in Chandra Shekhar Azad Smarak Junior High School, Nanpur, District Ghaziabad vide order dated 01.07.1974 and he remained in the said Institution till 30.06.1981. On 01.07.1981 he was transferred to Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Ghaziabad (now District Hapur). The Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur was brought on the grant- in-aid list with effect from March, 1991 and thereafter the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers & Other Employees) Act, 1978 became applicable.
It is stated that when salary was not paid to the petitioner he filed Writ Petition No.11572 of 1992 (Rajpal Singh Vs. Basic Shiksha Adhikari) and the Court by its order dated 06.04.1992 directed the Respondent- Basic Shiksha Adhikari to decide the petitioner's claim within one month. The Basic Shiksha Adhikari referred the matter to the Director of Education, who in turn by his order dated 13.03.1996 directed the Basic Shiksha Adhikari to decide the matter. Thereafter an order was passed on 08.04.1996 by the Basic Shiksha Adhikari according sanction for payment of salary to the petitioner from Government grant. The petitioner thereupon received arrears of salary from March, 1991 till April, 1996 and payment of salary was continued to be made till August, 1998. From September, 1998 the payment of salary was suddenly stopped without issuing any notice to show cause to the petitioner upon which he filed Writ Petition No.32936 of 1999 (Rajpal Singh Vs. Assistant Director of Basic Education & Others) in which the High Court passed an order on 06.08.1999 directing the Basic Shiksha Adhikari to decide the petitioner's representation dated 03.12.1998. In response an order was passed by the Basic Shiksha Adhikari, Ghaziabad on 29.03.2000 which was filed in the Court by the respondents alongwith the counter affidavit. The respondents then rejected the claim of the petitioner on the ground that there was no vacancy and that there was no documentary evidence to show that the petitioner had been transferred from Chandra Shekhar Azad Smarak Junior High School, Nanpur, District Ghaziabad to Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur and a recommendation was made to the Manager of the Committee of Management of the Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur to terminate the services of the petitioner otherwise the Committee of Management will be responsible for payment of salary to the petitioner in future. This order was challenged by the petitioner before the High Court in Writ Petition No.19797 of 2000 (Raj Pal Singh Vs. Assistant Director of Basic Education and Others) which was disposed of by the High Court vide order dated 14.03.2013 with a direction to the District Basic Education Officer, Ghaziabad to consider and decide the petitioner's representation and claim.
On 13.06.2013 an order was passed by the Principal, Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur requesting the District Basic Education Officer, Hapur to decide the claim of the petitioner taking into consideration that the matter relating to grant of relaxation against obtaining requisite training certificate had already been issued prior to 1991 and that the petitioner had also sought permission in 1990 for doing B.Ed. and ultimately he obtained B.Ed. Degree in 1993. Considering all these facts the Basic Shiksha Adhikari examined the matter and thereafter passed the impugned order dated 27.06.2013 rejecting the petitioner's representation dated 04.04.2013. In the said order it was also held that the petitioner's appointment was itself illegal in view of the Uttar Pradesh Basic Education Act, 1972 since on the date of the appointment the petitioner was an untrained Teacher and in 1981 on the date when he was transferred to Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur the Uttar Pradesh Recognised Basic Shools (Junior High Schoos) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as the Rules, 1978) had already come into force.
In the counter affidavit which has been filed on behalf of the respondents no.3 & 4 the case of the respondents is that the petitioner vide his letter dated 28.04.1981 had requested the Manager, Kishan Purva Madhyamik Vidyalaya, Jarauthi, District Hapur seeking his transfer to the said Institution and after obtaining consent from the Manager of both the Institutions, namely, Kishan Purva Madhyamik Vidyalaya, Jarauthi and Chandra Shekhar Azad Smarak Junior High School the petitioner was transferred to Kishan Purva Madhyamik Vidyalaya, Jarauthi where he joined on 01.07.1981.
The case of the respondents further is that under Rule 18 (1) of the Uttar Pradesh Recognised Basic Schools (Junior High Schoos) (Recruitment and Conditions of Service of Teachers) Rules, 1978 transfer from one Institution to another Institution could have been made only after obtaining the consent of the Managers of both the Institutions and further after obtaining the consent of the Managers of the two Institutions approval of the Basic Education Officer was mandatory which has not been done in the present case.
In the counter affidavit it is also stated that the President of the Institution has further informed the Finance and Accounts Officer, Office of Basic Education Officer, Ghaziabad that the appointment of the Head Master and four Assistant Teachers, namely, Shri Ranvir Singh, Rajpal Singh (petitioner herein), Naresh Veer Singh, Dharamveer Singh and Smt. Gayatri Devi is forged and the matter needs to be inquired into. The Finance and Accounts Officer in turn vide his letter dated 23.02.1999 informed the Basic Education Officer, Ghaziabad. The Basic Education Officer, Ghaziabad thereafter by his order dated 25.02.1999 directed the Finance and Accounts Officer to stop payment of salary to these persons including the petitioner.
Shri Siddharth Khare, learned counsel for the petitioner submitted that in paragraph 19 of the writ petition a categorical averment has been made by the petitioner that what is being referred to as an order dated 16.10.1993 is in fact a communication of the Basic Shiksha Adhikari, Ghaziabad addressed to the Management taking objection against information not having been supplied by the Management regarding transfer of the petitioner and therefore directing that the services of the petitioner be terminated. He submitted that by the order dated 08.04.1996 (Annexure-3 to the writ petition) the Basic Shiksha Adhikari while granting sanction to the payment of salary to the petitioner, has observed that the office vide its letter dated 04.10.1989 had referred the matter to the Regional Assistant Director Education (Basic) 1st Division, Meerut to grant exemption to the petitioner from obtaining requisite training certificate and therefore the Department had itself acknowledged the petitioner as Assistant Teacher and the averments of paragraph 19 and 20 of the writ petition have not been denied in paragraph 21 and 22 of the counter affidavit.
Shri Siddharth Khare further submits that at the time of appointment of the petitioner Rules, 1978 had not come into force and at that time there was no restriction on appointment of an untrained teacher.
Alongwith the rejoinder affidavit learned counsel for the petitioner has also placed before the Court a Government Order dated 04.12.1982 No.3/6764-84/15-10 (1)/82-83 wherein it is laid down that such untrained Teacher, Assistant Teacher, who have completed 10 years or more service as such on 30.06.1978 would be granted exemption from such training. Reference has also been made to another Government Order dated 05.06.1987, No.450/15 (13)/37-1499 (8)/77 wherein also it is stated that such untrained Teachers who have completed 10 years or more service as such on 30.04.1987 would be granted exemption from training and would be entitled to the scale of pay of a trained Teacher. Reference has also been made to a judgment of the learned Single Judge of this Court in Writ (A) No.15908 of 2012, Ram Chameli Devi Vs. State of U.P. and Others decided on 18.12.2017 wherein this Court had directed the Secretary, Basic Education to consider the case of the petitioner therein in the light of the Circular No.3/6764-84/15-10 (1)/82-83 dated 04.12.1982.
There is nothing on record to show that the Government Orders dated 04.12.1982 and 05.06.1987 have been withdrawn by the State Government and therefore the same continue to be applicable even as of today. The language of the two Government Circulars are absolutely clear and unambiguously and provide that untrained Teachers who were appointed in service as on 30.06.1978 and who have completed 10 years or more of service as on 30.04.1987 shall be given the trained Teacher pay scale and shall be granted exemption from training and will be entitled to pay scale as admissible to a trained Teacher.
So far as the allegation that the documents relating to the appointment of the petitioner alongwith others were forged, there is nothing on record to substantiate this allegation nor has any enquiry report being placed before this Court by the respondents. Moreover, the petitioner was transferred from Chandra Shekhar Azad Smarak Junior High School to Kisan Purva Madhyamik Vidyalaya sometime in 1981 allegedly without obtaining the sanction of the Basic Shiksha Adhikari and therefore, it is not open for the respondents now at this stage after more than 37 years to direct the College to terminate the services of the petitioner.
In this view of the matter, the impugned order dated 27.06.2013 is quashed.
The writ petition is allowed.
A direction is issued to the respondents to pay the arrears of salary to the petitioner as may be due and also pay him arrears of pension w.e.f. 01.07.1989 with other retiral benefits, if any, which may be due.
Order Date :- 31st May, 2018 N Tiwari