Hon'ble Virendra Kumar Srivastava, J.
(Delivered by Hon'ble Sudhir Agarwal, J)
1. Heard Sri H. N. Singh, Senior Counsel assisted by Sri Rishabh Srivastava, learned counsel for appellant and learned Standing Counsel for State-respondents.
2. Smt. Narayani Yadav, petitioner-appellant (hereinafter referred to as "appellant") having failed in getting any relief before learned Single Judge due to dismissal of Writ Petiton No.26650 of 2004 vide judgment dated 04.10.2010, has preferred this intra-Court appeal under Chapter VIII Rule 5 of Allahabad High Court Rules, 1952 (hereinafter referred to as "Rules, 1952). She has prayed for relief of setting aside aforesaid judgment of learned Single Judge as also to issue a writ of certiorari and quash retirement notice dated 26.04.2004 issued by Executive Officer, Nagar Palika Parishad, Shikohabad, District-Firozabad (hereinafter referred to as "EO, NPP, SKB").
3. By the aforesaid notice dated 26.04.2004, EO, NPP, SKB has informed appellant that she is completing age of superannuation on 31.07.2004, therefore, would retire on that date and should hand over charge to Principal of Bal Mandir, Nagar Palika Parishad, Shikohabad (hereinafter referred to as "School") wherein appellant was working as a Assistant Teacher.
4. Facts in brief giving rise to present appeal are as under.
5. The School was established, run and managed by Nagar Palika Parishad, Shikohabad, District-Firozabad (hereinafter referred to as "NPP, SKB") sometimes prior to 1968 and it was granted permanent recognition on 18.05.1968 by District Inspector of Schools, Mainpuri (hereinafter referred to as "DIOS"), since, at that time Shikohabad was part of District-Mainpuri and subsequently, it became part of District-Firozabad. School is a Basic Primary School (also called 'Junior Primary School') imparting education from Class I to V.
6. U. P. Legislature enacted U. P. Basic Education Act, 1972 (hereinafter referred to as "Act, 1972") to manage, control and regulate basic education in State of U. P. It received assent of Governor on 17.08.1972 and was published in U. P. Gazette (Extra-Ordinary) on 19.08.1972. All schools run by 'Local Bodies' were transferred under control of U. P. Basic Education Board (hereinafter referred to as "Board") and thereupon School also came within ambit of Act, 1972 and Rules and Regulations framed thereunder.
7. The service conditions of teachers of Basic Primary Schools came to be governed by U. P. Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as "Rules, 1981"). Under Rule 29 of Rules, 1981, age of superannuation was prescribed as 60 years.
8. By Government Order dated 04.02.2004, decision of government was communicated to Director, Basic Education, Lucknow that age of superannuation of teachers of Primary Schools run by Board and also aided Primary Schools is increased to 62 years. It also provided that such teachers who have completed age of superannuation in July 2003, but continuing under benefit of end of Session, will also get benefit of increased age of retirement.
9. Appellant's date of birth is 01.08.1944 as per her High School Certificate of 1962. Therefore, she completed 60 years age on 31.07.2004 and 62 years on 31.07.2006. She could not have been retired prior thereto i.e. 31.07.2006. Further since she was attaining age of superannuation on 31.07.2006, therefore, entitled for Session end benefit and would have continued up to 30.06.2007, if age of retirement is taken as 62 years or 30.06.2005, if age of retirement is taken as 60 years. It is said that notice dated 26.04.2004, informing appellant that she would retire on 31.07.2004, is illegal and contrary to Statute.
10. Writ petition was contested by respondents-1 and 2 by filing a counter affidavit, sworn by Md. Afaque, Head Moharrir, NPP, SKB stating that 'School' is not under control of Board though recognized under Act, 1972, therefore, appellant is not governed by Rules, 1981. It further says that Government Order dated 04.02.2004, firstly is not applicable to Schools run by Local Bodies and secondly, being an executive order, unless Rules are amended, no otherwise claim can be made. Further appellant earlier filed Writ Petition No.44014 of 2002 stating that under Act, 1972, Schools run by Local Bodies, mostly, have been transferred to Board, but School in question run by NPP, SKB, which was recognized in 1962, continued to be managed and controlled by NPP, SKB, therefore, it should also be directed to be taken over by Board and should be governed by terms, conditions and Rules of Board including salaries applicable to teachers and staff of Primary Schools managed by Board. The above writ petition was disposed of vide judgment dated 01.03.2004 directing State Government to take decision on demand of teachers of Schools run by Local Bodies with regard to parity in pay scale with teachers of Primary Schools managed by Board. Pursuant to said judgment, a representation was made by teaching and non-teaching staff including present appellant, copy whereof is filed as Annexure-4 to counter affidavit. Government consequently passed order dated 26.10.2004 holding that teachers of Schools managed by Local Bodies are not entitled to claim parity with teachers of Primary Schools managed by Board. Paras 2 and 3 of Government Order dated 26.10.2004 rejecting claim of appellant and others is reproduced as under :
^^2- mDr ds vuqdze esa ;kph ds izR;kosnu fuLrkj.k gsrq fnukad 14-4-2004 dks ,d cSBd vkgwr dh x;h ftlesa v/;{k uxj ikfydk ifj"kn f'kdksgkckn] fQjkstkckn us izfrHkkx fd;kA lgk;d f'k{kk funs'kd ¼csfld½ vkxjk e.My] ls vk[;k izkIr dh x;hA izkIr vk[;kuqlkj bl fo|ky; dks LFkk;h ekU;rk o"kZ 1968&69 esa iznku dh x;h FkhA ekU;rk izkIr fo|ky;ksa dks csfld f'k{kk ifj"kn] m0iz0 esa 'kkfey djus dh uhfr ugha gSA m0iz0 csfld f'k{kk vf/kfu;e 1972 ds v/khu xfBr m0iz0 csfld f'k{kk ifj"kn ds v/khu os gh fo|ky; fy, x;s tks vf/kfu;e iz[;kfir gksus ds le; ftyk fo|ky; fujh{kd o mi fo|ky; fujh{kd }kjk xzkeh.k {ks=ksa ds rFkk blh izdkj uxj fudk;ksa esa ftyk fo|ky; fujh{kd ,oa f'k{kk v/kh{kdksa }kjk f'k{[email protected]'k{k.ksRrj dfeZ;ksa ls lsok,W fu;af=r gksrh FkhA 3- m0iz0 csfld f'k{kk vf/kfu;e 1972 dh /kkjk 9 ds vUrxZr gh f'k{kk dehZ lEcfU/kr fudk;ksa ds ek/;e ls osru ik jgs Fks] mudh lsok,Wa m0iz0 csfld f'k{kk ifj"kn esa LFkkukUrfjr dj nh x;hA bl vf/kfu;e ds vUrxZr ekU;rk izkIr fo|ky;ksa dks csfld f'k{kk ifj"kn ds v/khu ugha fy;k tkrk gSA orZeku esa jkT; ljdkj dh ,slh dksbZ uhfr ugha gSA vr% cky fo|k eafnj fQjkstkckn ,oa ekU;rk izkIr fo|ky; gksus ds dkj.k m0iz0 csfld f'k{kk ifj"kn ds v/khu fy, tkus dk dksbZ vkSfpR; ugha gSA** "2. In pursuance of the above, a meeting was called on 14.04.2004 for disposal of the representation filed by the petitioner which was attended by the Chairman of Nagar Palika Parishad, Shikohabad, Firozabad. A report was obtained from the Assistant Director of Education (Basic), Agra Division. As per the report so obtained, this school was granted permanent recognition in the year 1968-69. There is no policy to include the recognized schools in Basic Education Board, Uttar Pradesh. Only those schools were included under the Uttar Pradesh Basic Education Board constituted under the Uttar Pradesh Basic Education Act, 1972 where the services of teaching/non-teaching staff used to be governed at the time of enforcement of the Act by the District Inspector of Schools and Deputy Inspector of Schools in case of rural areas and, similarly, by the District Inspector of Schools and Superintendents of Education in case of municipal bodies.
3. The services of the teaching staff, who was getting salary through the concerned bodies well under Section 9 of the Uttar Pradesh Basic Education, Act, 1972, were transferred to the Uttar Pradesh Basic Education Board. The recognized schools under this Act are not taken under Basic Education Board. At present, there is no such policy of the State Government. Hence, there is no justification for taking Bal Vidya Mandir, Firozabad under the Uttar Pradesh Basic Education Board as it being a recognized school."
(emphasis added) (English translation by Court)
11. Appellant and others, therefore, are continuing as employees of NPP, SKB and governed by terms, conditions and rules applicable to employees of NPP, SKB. Since there is no provision of giving advantage of two years extension to the age of retirement to employees of NPP, SKB, appellant's claim otherwise cannot be accepted. Similarly, there is no provision in NPP, SKB that an employee may continue even after attaining age of superannuation with Session benefit, claim of appellant for continuance till end of Session, also cannot be accepted.
12. In the rejoinder affidavit filed by appellant it is stated that Government Order dated 04.02.2004 is applicable to all recognized Primary Schools, therefore, will apply to teaching staff of Schools run by Local Bodies namely, NPP, SKB also.
13. Learned Single Judge has accepted contention of respondent that 'School' is controlled and managed by NPP, SKB, therefore, it is not governed by Rules applicable to teachers of Primary School managed by Board. It has also followed another Single Judge judgment in Smt. Mithlesh Singal Vs. State of U. P. and others (Writ Petition No.46178 of 2009) decided on 03.09.2009, hence, dismissed writ petition.
14. Parties have also filed certain affidavits before Court to place on record documents relating to recognition granted to 'School' by concerned Educational Authorities and other relevant documents, which we shall discuss at appropriate stage.
15. Certain facts evident from pleadings as also relevant Statutes and provisions contained therein, relied by the parties, it would be appropriate, to place in a chronological manner to make the things straight and more explicit :
18.05.1968 - DIOS, Mainpuri sent letter to Chairman, NPP, SKB communicating him about grant of permanent recognition to Bal Mandir Monterssary Vidyalaya, Shikohabad i.e. 'School' with a condition that it shall be shifted in a newly constructed school building near Nagar Palika Office by 25.06.1968, failing which, recognition order shall be cancelled.
10.07.1972 - U. P. Basic Education Ordinance, 1972 (U.P. Ordinance No.14 of 1972) was promulgated.
25.07.1972 - Under Section 3 of U. P. Ordinance No.14 of 1972, U. P. Basic Education Board was constituted/established.
19.08.1972 - U. P. Basic Education Act, 1972 (U. P. Act No.34 of 1972) was enacted and vide Section 20, U. P. Ordinance No.14 of 1972 was repealed.
19.08.1972 - Every teacher, officer and other employee serving under a Local Body exclusively in connection with Basic Schools, immediately before appointed date, stood transferred to and became a teacher, officer or other employee of Board.
19.08.1972 - Vide Section 18 (3) (b) of Act, 1972, Section 73 of U.P. Municipalities Act, 1916 (hereinafter referred to as Act, 1916) ceased to apply in relation to 'Basic Schools'.
25.04.1978 -Thereafter, vide U. P. Act No.10 of 1978, proviso was added to Section 73 of Act, 1916, which reads as under :
"Provided that the appointment of a teacher or Head of an institution shall be governed by the provisions of the Uttar Pradesh State Universities Act, 1973, or the Intermediate Education Act, 1921, as the case may be."
(emphasis added) 02.08.1978 - Petitioner was appointed as Assistant Teacher by EO, NPP, SKB.
03.01.1981 - Rules, 1981 were framed and enforced. Section 3 thereof provides extent of application and reads as under :
"3. Extent of application.-These rules shall apply to :
(i) All teachers of local bodies transferred to the Board under Section 9 of the Act ; and
(ii) all teachers employed for the Basic and Nursery Schools established by the Board."
(emphasis added) 21.06.1999 - Vide Section 13 A of Act, 1972, provisions of Act, 1972 were given overriding effect over Act, 1916.
21.06.1999 - Vide Section 9-A of Act, 1972, control of teacher and properties of Basic Schools stood transferred to Gram Panchayat and Municipalities within whose territorial limit, Basic Schools were situated. It reads as under :
"9-A. Control of teacher and properties of basic schools.- (1) Nothwithstanding anything contained to the contrary in any other provisions of this Act, on and from the date of commencement of the Uttar Pradesh Basic Education (Amendment) Act, 2000, -
(a) every teacher of the basic school serving under, the Board immediately before such commencement shall be under the. administrative control of the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school, is situated;
(b) all buildings, properties and assets of the Board in respect of a basic school shall stand transferred to, and vest in, the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits the basic school is situated;
(c) where any building or part thereof is occupied by a tenant by the Board for the purpose of a basic school immediately before such commencement, the tenancy in respect of such building or part thereof shall, notwithstanding anything contained in any contract, lease or other instrument, stand transferred in favour of the Gram Panchayat, or the Municipality, as the case may be;
(d) the Board shall cease to be the licensee in respect of the building or part thereof referred to in sub-section (2) of Section 18-A and the Gram Panchayat or the Municipality, as the case may be, within whose territorial limits such building is situated shall, if it is not already owner thereof, be deemed to have become licensee in respect of such building or part thereof on such terms and conditions as may be determined by the State Government.
(2) No Gram Panchayat or Municipality shall have the power to transfer by sale, gift, exchange, mortgage, lease or otherwise any building, property or assets transferred to, and vested in, such Gram Panchayat or Municipality, as the case may be, under sub-section (1)].
(emphasis added) 21.06.1999 - Certain functions were assigned to Municipalities vide Section 10-A of Act, 1972, which reads as under :
"10A. Functions of Municipalities. - Without prejudice to the powers and functions of Municipalities under the Uttar Pradesh Municipal Corporations Act, 1959 or the Uttar Pradesh Municipalities Act, 1916, as the case may be, every Municipality shall, subject to superintendence and control of the Board or the State Government, perform all or any of the following functions, namely :-
(a) to establish, administer, control and manage basic schools in the Municipal area;
(b) to take all such necessary steps as may be considered necessary to ensure punctuality and attendance of teachers and other employees of basic schools;
(c) to prepare schemes for the development, expansion and improvement of such basic schools;
(d) to promote and develop basic education, non-formal education and adult education in the Municipal area;
(e) to make recommendation for minor punishment in such manner as may be prescribed on a teacher or other employee of a basic school situate within the limits of the municipal area."
(emphasis added)
16. In the present case, appellant is claiming benefit of Section 9 of Act, 1972 read with Rules, 1981 to claim higher age of superannuation and benefit of end of Academic Session.
17. So far as Section 9 of Act, 1972 is concerned, a perusal thereof clearly shows that only such teachers stood transferred who were employed in Basic Schools on appointed date i.e. date of establishment of Board i.e. 25.07.1972. Appellant was not at all in employment in 1972. Therefore, Section 9 of Act, 1972 is not attracted.
18. Appellant admittedly was appointed on 02.08.1978. His appointment was not made by Board but by EO, NPP, SKB. Even proviso to Section 73 of Act, 1916 has no application, since it talks of U. P. State Universities Act, 1973 or U. P. Intermediate Education Act, 1921 and not Act, 1972.
19. Now coming to Rules, 1981, we find that the same were made applicable, vide Rule 3 of Act, 1972, to teachers and lecturers of Local Bodies, who stood transferred to Board under Section 9 of Act, 1972 or all teachers employed for Basic and Nursery schools established by Board.
20. The School in question was not established by Board. Hence, Section 9 of Act, 1972 was not available. Since appellant was appointed in 1978, therefore, by virtue of Rule 3, Rules, 1981, are not applicable to the case of appellant.
21. Learned counsel for appellant drew attention of this Court to U. P. Recognized Basic Schools (Recruitment and Conditions of Service of Teachers and Other Conditions) Rules, 1975 (hereinafter referred to as "Rules, 1975") which came into force on 01.07.1975 (Except Rule 11 which was made effective from 20.05.1975) when Rules were published in U. P. Gazette (Extra-Ordinary). Aforesaid Rules, 1975 are applicable to every recognized Schools as provided in Rule 3 and "Recognized School" is defined in Rule 2 (e) as under :
"2(e). "Recognised School" means any Junior Basic School, not being an institution belonging to or wholly maintained by the board or any local body, recognised by the Board before the commencement of these rules for imparting education from Class I to V."
(emphasis added)
22. Definition of "Recognised School" clearly shows that it is not applicable to a Junior Basic School which belongs to or wholly maintained by Board or any local body. Rules, 1975 are applicable to other Junior Basic Schools which are recognised by Board. Infact Junior Basic School i.e. school imparting education upto Class V which belong to or wholly maintained by Board or any local body are excluded from application of Rules, 1975.
23. Reliance is also placed on U. P. Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules, 1978") which came into force on 13.03.1978 i.e. the date on which said Rules were published in U. P. Gazette (Extra-Ordinary). Here also we find that by virtue of Rule 2 (e), these are applicable only to 'Junior High School' i.e. school imparting education from Class VI to VIII while School in question is clearly a Junior Basic School as it is imparting education from Class I to V, as is evident from para 2 of affidavit filed along with stay application in this appeal, therefore, aforesaid Rules are also not applicable.
24. In absence of any provision as relied by appellant, we have no manner of doubt that appellant having been appointed in 1978 by E.O., NPP, SKB continued to be an employee of said local body and age of retirement, therefore, in absence of any other provision applicable to appellant, would be such as were applicable to employees of NPP, SKB. Hence, appellant has rightly been informed about date of retirement on which she was to complete 60 years of age i.e. 31.07.2004 as the Rules applicable to employees of NPP, SKB.
25. We, therefore, find no legal or otherwise flaw or error in the judgment of learned Single Judge so as to warrant interference in this appeal.
26. Appeal lacks merit. Dismissed accordingly.
Order Date : 26.11.2019 Manish Himwan