Heard Sri G.C. Verma learned counsel for the petitioners and Sri Risabh Tripathi learned Brief Holder for the State.
This writ petition under Article 226 of the Constitution of India has been filed by the teachers who allegedly have been appointed in the primary section of Gauri Bal Vidya Mandir, Eye Hospital, Sitapur an aided junior High School since the month of March, 1985. Some of the petitioners have attained the age of superannuation during pendency of the writ petition.
The prayer made in the writ petition is for the payment of salary under the Payment of Salaries Act, 1978 w.e.f. 1.3.1985 on the ground that the junior high school of which the primary section is a part was taken under grant-in-aid by order dated 29.3.1985 w.e.f. 1.3.1985.
The controversy as regards the payment of regular salary to the teachers of primary Sections which were a part of the junior high schools brought under grant-in-aid has a chequered history. This issue initially was decided by the Hon'ble Apex Court in the case of Vinod Sharma and others versus Director, Basic Education, U.P. and others reported in (1998)2 UPLBEC 1082. Subsequently, further controversies arose whether the teachers working in the primary sections being part of junior High school receiving grant-in-aid were entitled to the payment of regular salary as a matter of right, there emerged different opinions.
As to whether the judgment rendered in the case of Vinod Sharma referred to above was a binding precedent, this question at a later point of time came to be referred to the larger Bench before the Hon'ble Apex Court and ultimately the Apex Court settled the controversy in the case of State of U.P. and others versus Pawan Kumar Dwivedi and others alongwith connected cases reported in (2006) 7 SCC 745.
In the present case, undisputedly the petitioners are working in the primary section of the same very institution of which the junior high school was brought under grant-in-aid w.e.f. 1.3.1985. The opposite parties have not been able to justify as to why the benefit which accrued to the teaching staff of junior high school was not to be extended to the teachers of primary section on the basis of the Apex Court judgments referred to above. It is however argued that the benefit of the judgment rendered by the Apex Court can only be extended to the petitioners provided the procedure of selection as prescribed was followed and the requisite qualification is met with.
The committee of management has filed a short counter affidavit but learned counsel for the committee of management despite his name being shown in the cause list has not appeared to argue.
This Court regard being had to the Apex Court judgment rendered in Pawan Kumar Dwivedi's case has no doubt that the case at hand is squarely covered under the apex Court judgment but in order to extend the benefit thereof, the petitioners in the present case have got to have the requisite qualification and a fair procedure for appointment must be shown which the competent appointing authority has followed as per the norms prescribed from time to time. Although the teachers appointed in unaided institution as per the procedure prescribed under U.P. Recognized Basic Schools(Recruitment and Conditions of Service of Teachers and other Conditions) Rules, 1975 are entitled to the same salary and allowances as are payable to the teachers of the Board yet there is a complaint that due salary was not paid to the petitioners ever since the institution came under grant-in-aid or prior thereto.
For payment of salary under Payment of Salaries Act, 1978, the Basic Shiksha Officer in respect of the petitioners in the present writ petition shall verify their eligibility as per Rules and on being satisfied in this regard, the benefit of difference of salary under the Payment of Salaries Act, 1978 shall be extended to them at par with the teachers of junior High School from the due date i.e. from the date of taking the institution under grant-in-aid.
This exercise shall be completed within a period of six months from the date a certified copy of this order is filed before opposite party nos. 2 and 3 who shall pass necessary order insofar as the petitioners are concerned. The appointments made shall be verified on the premise of requisite qualification and payment of salary made through cheque or any other genuine mode duly established through the record of accounts. The prescription of training may be considered to be released in respect of the candidates who fulfilled the educational qualification.
It is made clear that the payment of arrears of difference of salary payable to the petitioners shall be dependent upon their fulfilling the minimum educational qualification and payment of regular salary by the committee of management through cheque or genuine record. The difference of payment shall be due from the same date from which the teachers of junior high school were accorded the benefit of regular pay scale i.e. 1.3.1985 or from the date of appointment subsequent thereto as the case may be. The due payment shall be released not later than a period of six months from the date of production of a certified copy of this order.
The State is expected to evolve a common minimum training programme for the teaching staff employed in the recognized institutions so that the disparity in the pay scale is discouraged leaving no scope for discrimination. The qualified teachers untrained, if any, appointed in the recognized institutions for teaching from class I to VIII deserve to be trained by the State government under a sponsored and self sustained scheme so that the right of education available to the students below 14 years of age is well accomplished to achieve the goal of literacy in the pursuit of right to education.
The writ petition is accordingly disposed of.
Order Date :- 27.11.2019 kanhaiya