JUDGMENT O.P. Garg, J,
1. By means of this writ petition under Article 226 of the Constitution, the petitioner is seeking the relief that the respondent No. 1, the District Inspector of Schools (for short 'D.I.O.S.') be directed to grant approval for the payment of salary of the petitioner as Assistant Teacher working in Primary Section under the U. P. High School and intermediate (Payment of Salaries) Act, 1971 (hereinafter referred to as the Act of 1971).
2. Counter and rejoinder-affidavits have been filed. Learned counsel for the petitioner as well as learned standing counsel have been heard at sufficient length
3. The petitioner was admittedly appointed as Assistant Teacher in Primary Section of Lal Bahadur Sastri Takniki Inter College, Manda. District Allahabad on 6.8.1970 which was duly recognised and was paid the salary by the management. The primary section of the College was also put under the Payment of Salaries Act by the State Government vide G.O. No. 3048-15-8-89-354/87, dated 6.7,1989 and since then the payment to the teachers working in the Primary Institutions are made by respondent No. 1 under the Act of 1971. There were live teachers in the Primary Section. Approval has been accorded by the respondent No. 1 in respect of the four teachers who have been allowed to draw their salary. In respect of the petitioner, the financial approval has not been granted and consequently, she is not being paid the salary The obvious reason for not granting the approval in the case of the petitioner is, as the petitioner could ascertain, that she, according to the respondent No. 1, was not qualified to hold the post of teacher in Primary Section. According to the petitioner, she was Junior High School/Prathama pass and in the year 1970 when she was appointed as Assistant Teacher in Primary Section, no particular qualification was laid down and subsequently, by laying down specific qualifications for the post, the right of the petitioner to receive the salary cannot be defeated or jopardised. It was also made clear that the petitioner has passed the High School examination in 1991. A number of letters and reminders were sent by the petitioner as well as Committee of Management-respondent No- 2 to the D.I.O.S. but the financial approval has not been accorded.
4. In the counter-affidavit filed by Sri Anoop Kumar Maheshwari. Assistant District Inspector of Schools, Allahabad, the only plea taken is that on the relevant date, i.e., 1.10.1989, the petitioner did not possess the requisite minimum qualification as is required for appointment on the post of Assistant Teacher in Primary Section, and consequently, respondent No. 1 is not obliged to accord financial approval in respect of a teacher who is ineligible for appointment.
5. There is no dispute about the fact that by Government Order dated 6.9.1989, the salary of the teachers serving in the Primary Section is to be paid by the respondent No. 1 under the provisions of Act of 1971. It is also not in dispute that the petitioner was appointed on 6.8.1970 in the Primary Section. This fact is fortified from the details given in Annexure 1 to the writ petition and the counter-affidavit filed by respondent No. 1--the Committee of Management. At the time of initial appointment, the qualification of the petitioner was Junior High School/Prathma. The petitioner did not have any certificate or diploma of teachers' training and was also not High School pass at the time of her initial appointment. Prior to 1972, the primary teachers were not governed by any rules, or, regulations and were paid the salary from the funds of the management. It was in 1972, that the U. P. Basic Education Act was enacted by the State of U. P. with a view to provide for establishment of U. P. Board of Basic Education and the matter connected therewith. Under the provisions of the Act, the Government of U. P. framed rules known as U. P. Recognised Basic School (Junior High School) (Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as 'the Rules of 1978) for governing conditions of service of teachers working in Junior High School of the State. Therefore, before the Rules of 1978 were framed, there weee no statutory rules for regulating the conditions of service of teachers in Junior High Schools.
6. Now the question is whether the appointment of the petitioner made in the year 1970 as Assistant Teacher in the Primary School would, in any manner, be affected by the coming into force the statutory Rules of 1978 which prescribe the conditions of service, The petitioner admittedly continued to work throughout the period 1970 till the primary section of the institution was made on 6.9.1989 subject to the provisions of the Act, 1971. Even now, the petitioner is working in the institution but is not being paid the salary. It is also true that the petitioner does not fulfil the requisite qualifications which have now come to be prescribed under the Rules of 1978.
7. As said above, the petitioner was duly appointed in the year 1970 in the Primary Section and it was the year when there were no rules prescribing the minimum qualifications for the post of Assistant Teacher. Till 6.9.1989, the petitioner was paid the salary from the funds of the Management as no approval of the respondent No. 1 was required. The rights of the person, who was duly appointed as an Assistant Teacher in the Primary Section and was not governed by any service conditions cannot be affected by subsequent prescription of the qualifications. In arriving at this conclusion. 1 am fortified by a decision of the Hon'ble Supreme Court in Riksh Pal Singh v. Secretary, U. P. Basic Education Board and others, (1990) 1 UPLBEC 351. In that case, the services of the petitioner Riksh Pal Singh were terminated on the ground that he did not have the certificate of teachers' training course. It was held that the services of the teachers who were appointed before the enforcement of 1978 Rules cannot be terminated on the ground that they do not possess some requisite minimum qualifications, which have been provided for the first time by 1978 Rules. The various observations made in the aforesaid case squarely apply to the facts of the present case. The present is not a case where the petitioner has been screened out as the Government has not provided any qualification or made any provision for screening out the old teachers and in the absence of any such provision in the Act or the Rules framed thereunder for screening out the teachers on the ground of lack of some qualifications. It is not open to the D.I.O.S. to withhold their pay on the ground that on 6.9.1989 on which date the Act of 1971 was made applicable, a particular teacher was not possessing the requisite qualifications prescribed under the Rules of 1978. Since the petitioner is pre-1978 Rules appointee and has worked for more than two decades on the date on which the Act of 1971 was made applicable in the case of teachers in the Primary Section, the respondent No. 1 was not at all, justified in testing her qualifications as were prescribed in the Rules of 1978. The prescribed qualifications would be applicable only to such teachers who are appointed after the enforcement of 1978 Rules and not to those teachers of the Primary Section who were appointed in the year 1970, i.e., much before the enforcement of the U. P. Basic Education Act, 1972 and the Rules, which were framed under the Act in the year 1978.
8. The petitioner is having to her credit the teaching experience of about 27 years as on date. In her pursuit to acquire further qualification, she passed High School in 1991. The long teaching experience of the petitioner cannot be overlooked and as observed in Riksh Pal Singh's case (supra) "a teaching experience of about 13 years cannot be said to be less meritorious than one or two years training course". There is no suggestion from the side of the respondent No. 1 that the petitioner was lacking in any manner in her teaching job. The respondent No. 1, therefore, is not justified in withholding the final approval or releasing pay of the petitioner for the post of Assistant Teacher in Primary Section.
9. In the result, the writ petition succeeds and is allowed. The respondents are hereby ordered to make payment of salary to the petitioner as Assistant Teacher under the provisions of Act of 1971,