Brij Bhushan Mishra vs District Basic Shiksha Adhidari and Others

D.K. Seth, J.—In this writ petition, the order dated 10.12.1987 (Annexure-12 to the writ petition) passed by Respondent No. 1, namely, District Basic Shiksha Adhikari, Allahabad, by which the Petitioner�s representation was rejected, has been impugned, seeking a writ of mandamus directing the Respondents to regularise the Petitioner�s services as a trained teacher and to pay him the entire arrears of his salary in trained teachers'' grade in the revised pay scale.

The Petitioner�s contention is that he was appointed as untrained Assistant Teacher in the Adarsh Janta Vidyalaya, Shastri Nagar, Soraon, Allahabad (hereinafter referred to as Junior High School) which was temporarily recognised in the year 1973. Subsequently, after having recognised temporarily in the year 1973 the Respondents recognised the school in the year 1974 and the committee of management of the school in the year 1975 opened primary section, for which common attendance register along with the Junior High School teachers were maintained till 1980-81. Since there was dearth of teachers, the petitioner used to teach in the primary section as well, though he was appointed in the Junior High School.

The petitioner was selected for training in two years-course by the Basic Shiksha Adhikari, Respondent No. 1 on 21.2.1980. The petitioner in order to avail of the training known as ''Minima Test'' prescribed under the Government Order No. 2186/15 (13J-1499 (8)/77 of 1978, by which the working untrained teachers were eligible to appear in ''Karyarat Adhyapak Praman Patra Pariksha'' on completion of five years regular service. After having plucked on the first occasion in the year 1983, the petitioner passed ''Minima Test'' in the year 1987. In the meantime, he had also passed Intermediate examination in the year 1983. The said school came under grant-in-aid scheme in the month of April, 1982. Consequent whereupon, the provisions of U.P. Junior High School (Payment of Salaries of Teachers and Other Employees) Act. 1978 became applicable. But the Petitioner�s name was not included in the grant-in-aid list, for which he preferred several representations but nothing was done, due to which he filed Writ Petition No...of 1987 which was disposed of on 26th October, 1987 by this Court directing the Respondents to decide the Petitioner�s representations within six weeks from the date of service of a certified copy of the order upon him. Persuant to the said order, vide order dated 10.12.1987 the Respondent No. 1 decided the Petitioner�s representation holding that the petitioner cannot be paid his salary in accordance with the rules framed under Payment of Salaries Act, which has been filed as Annexure-12 to the writ petition being subject-matter of challenge herein. Despite the Circular dated 28.5.1983 (Annexure-14 to the writ petition) by which it was provided that the teachers working prior to coming into operation of the U.P. Recognised Basic Schools (Junior High School)(Recruitment and Conditions of Service of Teachers) Rules, 1978 shall be deemed to be approved automatically since 1987, the petitioner has not been allowed by the Respondent Nos. 2 and 3 to enter the school premises and no salary has been paid to him since August 1987 and even for the earlier period, he has only been paid part of the salary due to him.

It is on this background that the petitioner has filed the present writ petition claiming regularisation of his service in the trained grade of Junior High School upon exemption from training in terms of Government order of 1978 (Annexure-12 to the writ petition) and the Circular dated 28.5.1983 (Annexure-13 to the writ petition) and for treating him as a teacher appointed in the Junior High School.

In the counter affidavit, the Respondent No. 1 has made out a case that the petitioner was appointed in the primary section. The petitioner by his application dated 28th July, 1984 applied for appointment in primary section of the said school, which has been filed as Annexure-CA 2 to the counter affidavit. Since the Petitioner�s name was not sent for approval in the Junior High School, therefore, he could not have any case on the basis of record forwarded. It appears that the petitioner was appointed as assistant teacher in the Junior High School without payment of salary for ''short'' time and he was transferred in Adarsh Janta Primary School, thereafter.

The Respondent Nos. 2 and 3 in their counter-affidavit made out a case that the petitioner was not qualified for appointment as assistant teacher in the Junior High School, he was only Purva Madhyamik at that point of time, yet he was given short term appointment. The primary section was started in the year 1974 and recognised in the year 1975, then the petitioner was initially appointed in primary section and not for Junior High School and he had always been teaching in the primary section. Though common attendance register was maintained but the teacher of Junior High School is to sign at the top when the teacher of primary section is to sign below, as would appear from the attendance register of July, 1974 (Annexure-CA-5 to the Counter Affidavit) and subsequent register being Annexures-CA 6 and CA-7 to the counter-affidavit respectively. The Junior High School came under grant-in-aid scheme in the year 1982, therefore, the teachers of Junior High School became entitled to the salary under the Payment of Salaries Act and the Petitioner�s name could not be forwarded because he was in primary section. Therefore, he cannot claim regularisation of his appointment in the Junior High School and the consequential benefits.

In the rejoinder-affidavit, the petitioner denied the case made out by the Respondent No. 1 and the Respondent Nos. 2 and 3 respectively. According to him, he was appointed in the year 1973, whereas primary section was opened in the year 1974. Therefore, he was appointed in the Junior High School.

The petitioner has challenged the impugned order, Annexure-12 to the writ petition, that the ground of rejection, namely, the petitioner was not trained teacher, when the institution was recognised and, therefore, was not entitled to salary and that the petitioner was reverted to the primary section from Junior High School, in the year 1975 is arbitrary, illegal and cannot be sustained in the eyes of law in view of U.P. Recognised Basic School and Junior High School (Recruitment and Conditions of Service of Teachers) Rules, 1978.

Relying on Rule 15 of the said Rules, learned Counsel for the petitioner pointed out that prior approval is necessary for termination of services, which is absent in the present case, when the Petitioner�s appointment in the Junior High School was terminated and that he could not have been transferred because of Rule 18 of the Rules which prohibits transfer from Junior High School to primary section except with the approval of Basic Shiksha Adhikari, since the same is reduction in rank and that he had never applied for such transfer. In this case, no such approval is available. He also relied on the decision in the case of Smt. Shanti Devi Verma v. Deputy Director of Education and Ors. 1982 UPLBEC 365, and contended that once appointed disability cannot be a ground for termination of service, since Section 16F of the Act enables the authority to waive the requirement of prescribed qualification, but the said judgment is not applicable in the instant case. The said case was decided under U.P. Intermediate Education Act, 1921, which cannot be applied in the present case where the petitioner is governed by U.P. Basic Education Act, which does not contain provisions similar to those which have been referred to in the case of Smt. Shanti Devi Verma (supra).

Learned Counsel for the petitioner relying upon the decision in Riksh Pal Singh v. Secretary, U.P. Basic Education Board, Allahabad and Ors. 1990 (1) UPLBEC 351. contended that the services of the petitioner cannot be terminated in absence of certificate of teachers training course. In the case of Riksh Pal Singh (supra), it was held that the services of the Petitioner, therein, would not be terminated in absence of certificate of teachers training course, since at the time of appointment of the petitioner therein, in the year 1968, the training certificate was not one of the conditions for appointment to the post of assistant teacher in Junior High School and that there was no rule laying down conditions of service for the teachers of Junior High School. The rules which are framed for the first time in the year 1978 laid down in Rule 5 that no person shall be appointed as assistant teacher unless he possesses minimum qualification, as prescribed for the post, while Rule 4 prescribes certificate of teachers training course as one of such essential qualification. In fact the said decision does not help the Petitioner, inasmuch as in the said case of Riksh Pal Singh (supra), it was held:

The Act neither provides for transfer of management of Junior High Schools to the Government or the Education Board nor does curtail the managerial power of the management of these schools. Section 9 of the Act provides for transfer of the employees serving under a local body exclusively in connection with the basic schools and after transfer, these employees to hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as they would have held the same if the Board had not been constituted. This section further provides for option to these employees to opt out of the service of the Board within two months from the appointed date. So far as the private schools are concerned, there is no such provision in the Act or Rules framed there under for transfer of the employees of these schools to the Government or to the Board. The management of these private schools has been left untouched by the Act and the Rules. Only in 1978 for the first time, Rules were framed regulating the conditions of service of the teachers working in Junior High Schools but the power to appoint these teachers remains with the management of these schools. The Act and the Rules framed there under do not deal with services of the employees including the teachers of these schools who were appointed before framing of the Rules in 1978. The Rules are prospective in nature and do not affect the appointments, which have already been made before the commencement of the Rules. The services of the Teacher 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.

In the present case, though the Petitioner�s claim that he was appointed in the Junior High School but the fact remains, according to his own admission, that he used to teach in the primary section and the register, being Annexure-CA 5, 6, 7 to the counter-affidavit of Respondent Nos. 2 and 3, indicates that he used to work in the primary section. The appointment letter as disclosed in the said counter-affidavit indicates that he was a teacher in the primary section, transferred from Junior High School to the primary section, after the primary section was opened. In the given case where the petitioner was not qualified for being appointed in the Junior High School cannot be brought within the purview of prohibition of 1978 Rules since the said Rules have only perspective application and not retrospective as has been held in the above case of Riksh Pal Singh (supra).

Now, therefore, the petitioner having been posted in the primary school in the year 1975 and having not been working in the Junior High School, the provisions of 1978 Rules cannot be attracted, neither the benefit of the said case of Riksh Pal Singh (supra) could be availed of.

The said question pertains to a finding of fact as to whether the petitioner was a teacher in the primary section or in the Junior High School which has since been decided by Respondent No. 1 on the basis of material placed before him by a reasoned order. In exercise of writ Jurisdiction, the court cannot go into such question. The contention that because of Rules 15 and 18 of the said 1978 Rules neither termination of service from Junior High School nor his transfer to the primary section could be assailed in view of judgment in the case of Riksh Pal Singh (supra) on account of 1978 Rules being prospective in operation.

It is contended by the learned Counsel for the petitioner that despite interim order dated 9.8.1991 and 6.11.1992 to the effect to pay salary of the petitioner within a period of six weeks or to show cause, no salary is being paid to the Petitioner. The Respondents, however, contended that in absence of service they were unable to show cause and they had shown cause as soon as served and filed the counter-affidavit together with explanation seeking condonation of delay in filing the same.

Be that as it may, in the facts and circumstances of the case, it appears I that the question is a disputed question of facts which cannot be ascertained in favour of the petitioner on the basis of record produced before the court. On the other hand, the record stands to show to tilt the case in favour of the Respondents. In that view of the matter, I am not inclined to interfere with the impugned order, contained in Annexure-12 to the writ petition. The writ petition is, therefore, liable to be dismissed.

This order, however, shall not prevent the petitioner from claiming regularisation of his services in the primary section and if such claim is made, the Respondents shall take appropriate steps as early as possible and in case the Petitioner�s services is regularised, in that event all benefits may be made available to him, in case the petitioner has served the school in the meantime.

With the above observation the writ petition is dismissed. There will, however, be no order as to costs.