JUDGMENT Sudhir Agarwal, J.
1. Heard Sri R.C. Singh, counsel for the petitioner, Learned standing counsel for respondent Nos. 2,4 and 5 and Sri K.K. Rai on behalf of respondent Nos. 1 and 3.
2. The petitioner was appointed as Assistant teacher in Junior Primary School Mathia Bodarwar Block Kaptanganj, District Deoria vide appointment letter dated 12.1.1973 issued by Basic Shiksha Adhikari. The sub Inspector of School vide order dated 20.9.1973 transferred the petitioner to Junior High School Bodarwar Block Kaptanganj, District Deoria. In pursuance to the aforesaid order of transfer the petitioner joined on 16.10.1973 at Junior High School Bodarwar Block Kaptanganj, District Deoria but she was paid salary applicable to the assistant teacher working in Junior Primary School. She made a representation claiming salary of the post on which she was discharging duties but the same was not paid and in the meantime when the matter remained pending, the petitioner was considered for regular promotion in the cadre of Assistant teacher, Junior High School and after her selection by departmental selection Committee she was promoted as Assistant Teacher, Junior High School w.e.f. 1.11.1986. The respondents have paid salary of Assistant teacher, Junior High School to the petitioner from 1.11.1986 and onwards i.e. after promotion. Claiming the salary of the period i.e. 16.10.1973 to 30.10.1986, for the post of Assistant teacher, Junior High School, she approached this Court vide writ petition No. 16386 of 1998 which was disposed of vide order dated 13.5.1998 directing the authorities concerned to consider the matter and decide by a speaking order. The Assistant Director of Education, Gorakhpur has passed the impugned order dated 15.10.1998 holding that she was promoted only on 1.11.1986 and thereafter has been paid salary on the post of Assistant Teacher, Junior High School and for the period of 16.10.1973 to 30.10.1986 she is not entitled for salary on the post of Assistant Teacher, Junior High School.
3. Learned Counsel for the petitioner submits that formal promotion in the cadre of Assistant teacher in Junior High School might have been delayed by the respondents but that can not be a valid reason to deny payment of salary to the petitioner of the post of which she was made to discharge duties. He submits where the respondents themselves posted the petitioner as Assistant teacher in the Junior High School and made her to work and discharge duties as Assistant Teacher in Junior High School, she could not have been denied salary payable for such work which all other teachers discharging same duties were being paid. He submits that the action of the respondents in denying salary to the petitioner on the post of Assistant teacher of Junior High School from 16.10.1973 till 30.10.1986 is arbitrary and violative of principle of equal pay for equal work besides being contrary to Article 23 as it amounts to forcing the petitioner for Begaar. He also contended that the transfer was made by the authorities on their own and it was not open to the petitioner to disobey such order of transfer. That being so in the matter of salary the petitioner could not have been discriminated and therefore she was entitled for salary for the work she discharged at Junior High School, Bodarwar, Block Kaptanganj, district Deoria.
4. Sri K.K. Rai appearing for the respondent Nos. 1 and 3 however submits that under the rules, Assistant teacher, Junior Primary School is entitled for promotion to the post of Assistant Teacher, Junior High School after serving for five years. Since the petitioner was transferred and posted in Junior High School only after a few days from the date of appointment in Junior Primary School, therefore, under law she was not entitled for promotion. Accordingly she was not entitled for the salary of the promoted post.
5. Heard learned Counsel for the parties and perused the record.
6. The facts and circumstances of the case shows piquant factual position and raises a vexed legal question. The pay scales of various assistant teachers working in different grades are prescribed under the rules.
7. It is not disputed that the terms and service conditions of the petitioner is governed by U.P. Basic Education (Teachers) Service Rule 1981 (in short 1981 Rules). Under Rule 5, the Assistant Teacher of a Junior Primary School is to be appointed by direct recruitment in the manner and the procedure prescribed under Rule 14 and 15 of 1981 Rules. The Assistant Teachers of Senior School/ Junior High School are to be appointed by promotion under Rule 18 of 1981 Rules which is reproduced as under:
18. Procedure for recruitment by promotion: (1) Recruitment by promotion to the posts referred to in Clause (b) of Rule 5 shall be made on the basis of seniority subject to rejection of unfit through the Selection Committee constituted under Rule 16.
(2) The appointing authority shall prepare an eligibility list of candidates in order of seniority and place it before the Selection Committee alongwith their character rolls and such other records pertaining to them as may be considered proper.
(3) The Selection Committee shall consider the cases of the candidates on the basis of the records referred to in Sub-rule (2).
(4) The Selection Committee shall prepare a list of selected candidates in order of seniority as disclosed from the eligibility list referred to in sub rule (2) and forward the same to the appointing authority.
8. Rule 21 prohibits transfer from rural area to urban area or vise-versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teachers himself and with the approval of the Board. Rule 25 provides the pay scale admissible to the person appointed to any post under 1981 rules which shall be such as determined by the government from time to time. It is not the case of the respondent that the petitioner was transferred either on her own request or with her consent. Admittedly the petitioner was appointed as Assistant Teacher of a Junior Primary School but respondents transferred her from Junior Primary School to Senior Basic School/ Junior High School vide order dated 20.7.2003 issued by Respondent No. 5. The petitioner complied the aforesaid order and joined the Senior Basic School i.e. Junior High School and discharged her duties accordingly. The appointment was not stop gap, short term or for exigency of service till any other appointment is made but it continued for decades. It is also admitted that the petitioner discharged her duties in the Junior High School where she was transferred since October 1973 without any complaint and none has been pointed out in the counter affidavit filed by the respondents. The only reason assigned by the respondents for denying salary of the post of which the petitioner discharged duties for decades is that the petitioner was transferred to Junior High School without having minimum five years experience which was necessary under the rules and therefore, she could not have been allowed the pay scale of Assistant Teacher of Junior High School. Rule 8 of 1981 rules provides that for promotion to the post of Assistant Master, Junior High School, an incumbent must have five years experience as permanent Assistant Teacher of Junior Primary School. Admittedly so long, as petitioner did not fulfill the qualification under Rule 8 she could not have been promoted as Assistant Teacher in the Junior High School/ Senior Basic School but where the respondents on their own exercising the power vested under the rules transfer a person to a post of higher status and scale involving higher degrees of responsibilities, and take work for years together, it would be arbitrary and unreasonable to allow such person salary in the lower pay scale although the work of higher post is being taken. If the petitioner would have disobeyed the order of transfer, she could have done so at the risk of disciplinary proceedings on the charge of dereliction of duty and disobedience of the directions of the higher authority. Simply because she followed and carried out the order of authority, she cannot be made to suffer for such compliance.
9. When a particular pay scale is prescribed for a particular post involving duties and responsibilities of a particular level, it is assumed that salary has been fixed taking into account all relevant factors and the minimum of the scale is the appropriate minimum wages payable as determined considering the nature of work required to be discharged at the level of such higher post. If a person is required by an authority of the State to discharge duties of a higher post for such a long time, the wages payable to such post can not be denied to such person otherwise in my opinion, it would be violative of Article 14, 21 and 23 of the Constitution.
10. In the case of State of Gujarat v. Hon'ble High Court of Gujarat the Apex Court held that exaction of labour and services against payment of less than the minimum wages amounts to forced labour within the meaning of Article 23 of the Constitution of India. It is not the case of the respondents that the order transferring the petitioner to Junior High School, Bodarwar was illegal, unlawful or could not have been passed by the authority who had issued the same, It is also not the case of the respondents in the counter affidavit that the said arrangement was for a short term and stop gap. The only defence taken in the counter affidavit and the impugned order is that the promotion to the post of Assistant Teacher, Junior High School is permissible only when the Assistant Teacher, Junior Primary School possess experience of five years and therefore the salary of higher post could not have been paid for the year from 16.10.1973 to 30.10.1986. In the absence of any challenge to the validity of the order whereby the petitioner was required to discharge duties as Senior Basic School, Bodarwar, it is difficult to deny salary to the petitioner of the higher post of which she discharged her duties under the orders of respondents for a period of more than a decade. Article 23 of the Constitution of India is the provision under the heading right against exploitation. Respondents are not permitted to compel an employee to discharge higher duties and obligation for which higher salary is prescribed but pay lesser salary. It would amount to exploitation on the part of the respondents by imposing compulsory service upon the employee denying commensurate wages. The forced labour may arise in several ways namely it would a physical force, it may be enforced or exerted through a legal provision such as the provision for imprisonment or fine in case the employee fails to provide labour or service or it may be compulsion arising from hunger and poverty, want and destitution and so on. Similarly where a person provides labour or service to another for remuneration which is less than the wages provided for such work, it would fall within the scope and ambit of the words 'Forced Labour' under Article 23.
11. The Apex Court in Union of Democratic Right v. Union of India observed as under, "We are, therefore, of the view that where a person provides labour or service to another or remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23". This has been followed with approval by the Apex Court in the case of State of Gujarat (Supra).
12. The question of promotion in the peculiar facts and circumstances of the case is not relevant since for the purpose of valid promotion and thereby entitlement of the petitioner to claim seniority etc. on the post of Assistant Teacher, Junior High School, it would arise only when such a promotion is allowed in accordance with rules. But so far as the salary is concerned where she has discharged duties of higher post for such a long time pursuant to order passed by an authority of the state, denial of salary commensurating to such work to the petitioner is arbitrary, discriminatory and is also violative of Article 23 of the Constitution of India. Therefore, in my view the petitioner is entitled for payment of salary of the post, she discharged duties from 16.10.1973 till 30.10.1986.
13. In the result, the writ petition succeeds and is allowed. The impugned order dated 15.10.1998 is quashed to the extent above and respondents are directed to pay salary at the minimum of the pay scale applicable to the post of Assistant teacher, Junior High School to the petitioner since 16.10.1973 till 30.10.1986 within a period of six months from the date of production of certified copy of this order.
14. It is however, clarified that for the purpose of increment, seniority etc. on the post of Assistant Teacher, Junior High School, the petitioner would not be entitled for any benefit on account of payment of the aforesaid salary but the same would be available to the petitioner from the date she was promoted as Assistant Teacher, Junior High School and in accordance with relevant rules.