Sheela Arvind (Smt.) and Others vs State of U.P. and Others

Ashok Bhushan, J.—Heard Counsel for the petitioner and learned Standing Counsel. Counter and rejoinder affidavits have been exchanged and with the consent of the parties the writ petition is being finally disposed of.

This writ petition has been filed praying for a writ of mandamus directing the respondents to grant automatic promotion to the petitioners in C.T. Grade after working and completion of five years in B.T.C. Grade from their respective initial appointments and to pay their salary with all consequential benefits with 12.5% interest. A further prayer has been made for a writ of mandamus of directing the respondents that the petitioners No. 1 to 13 and 16 be given salary of L.T. Grade also treating their ten years'' service over all satisfactory service after adding five years in C.T. Grade with all benefits. A writ of certiorari has also been claimed praying for quashing the impugned order dated 19.5.2000 Annexure-22 to the writ petition.

The facts of the case as emerge from the pleadings of the parties arc that Dwarika Prasad Girls Inter College, Allahabad is a recognised and aided institution. The institution is a girls institution running from Class I to Class XII. The primary section has been running with the institution as attached primary section. Initially the primary institution was not receiving any grant in aid from the State. The primary section was brought on grant in aid by Government Order dated 25.11.1985. The petitioners were appointed as assistant teachers in B.T.C. Grade in Primary Section from different dates. The details of the appointment of the petitioners including the date of appointment and qualification has been mentioned in paragraph 4 of the writ petition. The details of appointment as given in paragraph 4 of the writ petition arc extracted below :--

Name of candidates Date of appointment Qualification at the in B.T.C. Grade time of appointment 1. Smt. Sheela Arvind 12.07.74 M.A., L.T. 2. Smt. Kusum Sharma 12.07.74 B.A., L.T. 3. Smt. Malti Dixit 26.06.75 B.A., B.Ed. 4. Smt. Sarita Agarwal 20.07.75 M.A., B.Ed. 5. Smt. Rekha Roy 01.08.75 B.A., L.T. 6. Smt. Chandra Lekha 05.09.75 M.A., L.T. 7. Smt. Neera Srivastava 18.08.75 -do- 8. Smt. Lajesh Srivastava 03.08.78 -do- 9. Smt. Veena Agarwal 23.07.79 -do- 10. Smt. Poonam Saxena 12.03.79 -do- 11. Smt. Sadhna Bhargava 17.07.82 -do- 12. Smt. Shailja Raina 25.11.83 B. Sc., L.T. 13. Smt. Vinod Srivastava 03.08.83 M.A., B.Ed. 14. Smt. Hridaya Sharma 11.07.69 Inter, B.T.C. 15. Smt. Sushila Devi Jaiswal 17.07.73 Inter, B.T.C. 16. Suman Srivastava 18.07.80 M.A., L.T.

After primary section was taken on grant in aid an order was passed by the District Inspector of Schools dated. 15.9.1986 by which the teachers working in the primary section with their date of appointments and pay scale were approved. All the petitioners were approved in pay scale of Rs. 365-555/- and the date of appointment as given in paragraph 4 of the writ petition quoted above, was also accepted as the date of appointments of the petitioners. The primary section was taken under the U.P. High School & Intermediate Colleges (Payment of Salaries of Teachers and other Employees) Act, 1971 with effect from 1.12.1985. With effect from 1.12.1985 all the teachers and the other teachers of the primary section are receiving their salary from the State fund.

That the petitioners arc still working in the B.T.C. Grade in the institution and have claimed that they are entitled for grant of C.T. Grade in accordance with the Regulation 7 (2) of Chapter II of Regulations framed under the U.P. Intermediate Education Act, 1921 after completion of five years of their services in B.T.C. Grade teacher. Petitioners'' case is that they were qualified to be given C.T. grades since all the petitioners arc trained graduate from the date of their first appointment in B.T.C. Grade. Petitioners have stated that they have submitted representations and claimed grant C.T. Grade, which was not accepted to them hence they filed the present writ petition. In pursuance of an order passed by this Court in the present writ petition the claim of the petitioners was decided by the order dated 19.5.2000 passed by the Deputy Director of Education Madhyamik. IV Region, Allahabad, by which the claim of the petitioners for grant of C.T. Grade has been refused. The aforesaid order dated 19.5.2000 passed by the Deputy Director of Education Madhyamik IV Region, Allahabad has been filed as Annexurc-22 to the writ petition and the same has also been prayed to be quashed. The petitioners have challenged the first order and claimed that the aforesaid order is erroneous and the reasons given in the aforesaid order are contrary to law as declared by this Court in the case of Smt. Samantika Chatterjee Vs. Regional Inspectress of Girls School, Allahabad and others, (1990) 1 UPLBEC 239) . Petitioners have further stated that they were also entitled for grant of L.T. Grade after completion of total 10 years services which include five years as C.T. Grade.

A counter affidavit has been filed by Smt. Maya Niranjan, Deputy Director of Education Madhyamik, IV Region, Allahabad in which it has been stated that the petitioners were first time approved as assistant teachers of primary section after the primary section was taken on grant in aid by the Government Order dated 25.11.1985. It has been stated that prior to 25.11.1985 the petitioners were appointed by the manager and they were not approved teachers by the department. It has further been stated that the petitioners have been teaching only primary section i.e. from Class I to Class V. It has been stated that the petitioners are not entitled for the benefit of Regulation 7 (2). It has been further stated that the C.T. Grade itself has been declared as dying cadre by the Government order dated 11.8.1989. In view of the C.T. Grade having been declared as dying cadre the claim of the petitioners is not justified. Reference has also been made to Government order dated 28.9.1974 in which it was stated that the benefit of suo mow promotion in C.T. Grade is not admissible to the teachers of attached primary. Petitioners have filed the rejoinder affidavit in which the contents of the counter affidavit have been denied. It has been stated by the petitioners that they arc approved teachers. Copy of order dated 15.9.1986 of the District Inspectors of Girls Schools, Allahabad has been filed by the petitioners as Annexure R.A. 1 to the rejoinder affidavit by which the petitioners were approved with their respective date of appointment.

After having heard Counsel for the petitioners and perusing the record the main issues which arise in the writ petition are :--

(i) Whether the petitioners are entitled to the benefit of Regulation 7 (2) of the Regulations framed under the U.P. Intermediate Education Act, 1921;

(ii) If the petitioners arc entitled for the benefit of suo moto promotion in C.T. Grade what is the date from which they are entitled for the said benefit;

(iii) If the petitioners are found entitled for C.T. Grade whether they are entitled for the benefit of L.T. Grade.

"Institution" is defined in Section 2, Sub-section (b) of the U.P. Intermediate Education Act, 1921. This definition of the institution was substituted by Section 2 of the U.P. Secondary Education Laws (Amendment) Act No. 26 of 1975. Definition in 2 (b) as amended by the aforesaid amending Act contemplate that a part of any institution will also be treated as institution. The primary section which is running attached with the Intermediate College comes within the definition of institution. Regulation 7 (2) of U.P. Intermediate Education Act, 1921, provides a channel of promotion to J.T.C./ B.T.C. Grade who have passed Intermediate or a trained graduate and has completed five years'' service in that Grade. It is admitted that all the petitioners were appointed, in B.T.C. Grade in primary section of the institution and their appointments have also been approved after the primary section came under the Payment of Salary Act. The approval order dated 15.9.1986 annexure R.A. 1 to the rejoinder affidavit also mentions the respective date of appointment of all the petitioners, The dates of appointment of the petitioners as shown in the approval order dated 15.9.1986 are the same as claimed by the petitioners in paragraph 4 of the writ petition. Thus the claim of the petitioners that they were appointed in B.T.C. Grade on different dates from the years 1974 to 1983 is admitted.

The petitioners have claimed that they arc trained graduates which fact has not been denied in the counter affidavit nor any such grounds has been mentioned in the impugned order. The claim of the petitioners for grant of C.T. Grade has been rejected by the Deputy Director of Education, Madhyamaik, IV Region, Allahabad mainly on the following grounds :--

(a) the petitioners were appointed to teach primary section from Class I to Class V. Petitioners have never taught Junior High Court classes.

(b) according to Government Order dated 11.8.1989 C.T. Grade has been declared as dying cadre and no post is to be created in C.T. Grade nor any teacher can be appointed in C.T. Grade.

(c) the Government Order dated 28.9.1974 explained the earlier Government Order dated 25.1.1974 and it was provided that this benefit of suo moto promotion in C.T. Grade is not admissible to the primary section attached to the girls institution.

(d) The Government Order dated 25.1.1974 is not applicable on the primary section, In the institution there arc only 31 posts of C.T. and L.T. Grade against which 27 teachers arc receiving salary ''and there are only four posts of L.T. Grade vacant.

The impugned order dated 19.5.2000 has been challenged in the writ petition. The Counsel for the petitioners has emphatically submitted that the question as to whether the teachers teaching only primary section which is attached along with the Girls Intermediate College is entitled for the benefit of Regulation 7 (2) or not, has already been considered and decided by the Division Bench of this Court in Smt. Samantika Chatterjee''s case (supra) and the reasons which have been given in the impugned order are, fallacious and contrary to law declared by the Division Bench of this Court. The Division Bench in Smt. Samantika Chatterjee''s case (supra) has considered the Government Order dated 25.1.1974 as well as the subsequent D.O. letter dated 4.10.1974 of Director of Education. The Director of Education in his letter dated 4.10.1974 has communicated the answers of the State Government on a query (i) whether lady teachers of the primary classes employed in the institution meant for girls school would be given automatic promotion. The D.O. letter dated 4.10.1974 communicated that the said benefit cannot be given to the lady teachers employed in the primary section. The Division Bench considered all the provisions including the D.O. letter dated 4.10.1974 and took the view that the D.O. letter is arbitrary and the benefit of suo moto promotion to the teachers of primary section is admissible. In paragraph 12 the Division Bench held that the teachers teaching only up to class V are also entitled for the benefit. Paragraph 12 of the judgment is being quoted below :--

"12. It is an admitted position that classes I to V are comprised in the primary section. Classes VI, VII and VIII and Classes VI in particular, can by no stretch of imagination be considered to be an integral part of a recognized Higher Secondary School or Intermediate College, if the reasoning given by the Supreme Court in Prem Lata Misra v. H.L. Dutt and Ors. ILR 1974 All 220 and by this Court in Mahanand Singh and Ors. v. State of U.P. and Ors. 1978 ALJ 1042 is applied, it is not the case of the respondents nor can it be, that the students or classes VI,VII and VIII of the Indian Girls Inter College, Allahabad appear in any examination conducted by the Boz Board. It is conceded that for the students of the said classes an internal examination is held by the institution concerned. Therefore, for the purposes of automatic promotion to the C.T. Grade teachers who are assigned the task of teaching class V and teachers who arc assigned the task of teaching classes VI, VII and VIII stand on the same footing. There is no rational basis for segregating teachers who arc employed for teaching the students of classes I to IV and the teachers who are assigned the task of teaching classes VI, VII and VIII. The classification, therefore, is on the face of it arbitrary. The decision, clarification of the State Government is, therefore, liable to be struck down on this score too..

Last but not the least, Regulation 7(2) may now be read :--

"Whether in an institution any teacher working in the J.T.C./B.T.C. Grade has passed intermediate or an equivalent examination or is trained graduate and has completed five years in that Grade he shall be promoted in the C.T. Grade by the Committee of Management and information of such promotion shall be immediately conveyed to the Inspector.

It will be remembered that Regulation 7 (2) forms part of Chapter II, which was substituted under the Government notification dated 7th July, 1976. It may also be noted that the source of the Regulation contained in Chapter II is Section 21 (1) of the U.P. Act 26 of 1975 and this provision has already been quoted above. It opens with a non-obstenate clause notwithstanding. The plain meaning of the provisions of Section 21 (1) of the U.P. Act 26 of 1975 is that inspite of the provisions of the Act, the State Government is empowered to make Regulations with respect to matter contained in Chapter II. It, therefore, follows that the State Government is empowered to frame regulation inspite of the definition of "Recognised" as contained in Section 2 (d) of the Act. It is also apparent that the "Institution" in the Regulation under reference has to be assigned the mention as given to that expression in Section 2 (b) of the Act as substituted by Section 2 of the U.P. Act 26 of 1975. We have already extracted the definition above. In the context and setting of Regulation 7 (2) there can be no difficulty in taking the view that a teacher working in J.T.C./B.T.C. Grade and assigned the task of taking the primary classes attached to the recognised Intermediate College of Higher Secondary School or High School would be considered to be working in the part of the institution, "as the case may be". That apart, the workings of Regulation 7 (2) are wide enough to include all the teachers working in the J.T.C/B.T.C. Grade in an institution irrespective of the classes assigned to them It makes no difference whether a teacher is allowed to teach students of class V or of Classes VI, VII or VIII. The Regulation does not draw any such distinction. Therefore, in any view of the matter, there can be no difficulty in taking the view that the clarification/decision of the State Government as contained in the communication of the Director dated 4th October, became repugnant to the provisions as contained in Regulation 7 (2). The two cannot Consolidation Officer exist. Consequently, it must be held that the offending portion of the clarification/decision., which affects the petitioner, became ineffective upon the enforcement of Regulation 7 (2)."

In Smt. Samantika Chatterjee''s case (supra) the petitioners of the writ petition were teaching only primary classes of the Girls Intermediate College, namely. Indian Girls Intermediate College, Allahabad. Their claim for suo moto promotion in C.T. Grade in accordance with the Regulation 7 (2) was rejected against which the writ petition was filed. The Division Bench of this Court allowed the writ petition that the Division Bench judgment in Smt. Samantika Chatterjee case fully supports the claim of the petitioners is not in accordance with law declared by the Division Bench. The Division Bench has not rejected the claim of the petitioners on the ground that they are only teaching in primary section. This issue was already decided by the Division Bench and it was held that even the teachers in J.T.C./B.T.C. Grade teaching in primary section are entitled for the C.T. Grade.

In view of the above the first reason given by the Deputy Director of Education fails.

The second reason given by the Deputy Director of Education is that the C.T. Grade was declared as dying cadre on 11.8.1989. The effect of declaring a Grade to be dying cadre is that no appointment will be made in the said Grade. The petitioners are not claiming any appointment in C.T. Grade but their claim is based on the rights which accrued to them on their completion of five years'' service as B.T.C. Grade teachers after fulfilling necessary legibility. It is to be noted that Regulation 7 (2) under which the benefit was claimed by the petitioner itself was deleted by the Government Order dated 19.8.1972 even after deletion of the aforesaid Government Order the teachers who has matured their right prior to the deletion were held entitled for the grant. This Court in 1995 (3) ESC 92 Smt. Aruna Ghosh v. State of U.P. and Ors., held in paragraph 4 as under :--

"4. The fact that the aforesaid provision was deleted by means of notification No. 4168/15-7-10 (160)-1991 T.C., Lucknow dated 19.8.1992 would not affect the right already acquired by petitioner. The Government Order dated 19.8.1992 omitting Regulation 7 (2), cannot be given retrospective effect so as to effect right already acquired by the petitioner under the said provision as it stood before its omission with effect from 19.8.1992. The stand taken in the counter-affidavit that the petitioner was not entitled to C.T. Grade merely because of the omission of Regulation 7 (2), in view of the notification dated 19.8.1992, cannot therefore, be countenanced."

In view of the law laid down in above case it is clear that by deletion of Regulation 7(2) or by delcaring C.T. Grade as dying cadre rights already accrued to a teacher will not be destroyed and the claim of such teachers has to be given effect to.

The third reason which has been given by the Deputy Director of Education is that in view of the Government Order dated 28.9.1974 teachers of primary section arc not entitled for the benefits of Regulation 7 (2) is already covered by the decision of the Division Bench given in the case of Smt. Samantika Chatterjee. After the Government Order dated 28.9.1974 the Director of Education has issued a letter dated 4.10.1974. Vide letter dated 4.10.1974 the Director of Education communicated the answer given by the State Government to aforesaid query in which one of the queries was as to whether the lady teachers of primary classes employed in the institution meant for girls could be given the facility of automatic promotion. The answer to the aforesaid query was given as "no". Samantika Chaterjee''s case has considered the aforesaid D.O. letter dated 4.10.1974 and has already held the same to be arbitrary. The above decision of the Government as communicated by the Government order dated 28.9.1974 was held to be repugned to the provisions as contained under Regulation 7 (2). The aforesaid discussion is contained in paragraph 12 of the judgment of Smt. Samantika Chatterjee''s case which has already been quoted above.

That the fourth reason given by the Deputy Director of Education that there are only four posts has also no relevance. The suo moto promotion in C.T. Grade is not dependent on any vacancy. The C.T. Grade is a grant of higher grade to a B.T.C. Grade teacher who fulfils the qualification and competes five years'' service Regulation 7 (2) does not contemplate existence of any vacancy. The Division Bench in the Smt. Samantika Chatterjee''s case has held the aforesaid Regulation 7 (2) as a regulation giving right of suo moto promotion to assistant teachers. In view of the above, none of the reasons given by the Deputy Director of Education in rejecting the claim of the petitioners are sustainable. The petitioners arc fully entitled for grant of C.T. Grade in view of the law laid down by this Court in the case of Samantika Chatterjee (supra).

The next question which is to be considered is as to from which date the petitioners are entitled for grant of C.T. Grade. According to the date of appointment of the petitioners as accepted in the approval order petitioners No. 1 and 2 were appointed on 12.7.1974; petitioners No. 3, 4, 5, 6 and 7 were appointed in the year 1975; petitioner No. 8 was appointed in the year 1978; petitioner Nos. 9 and 10 were appointed in the year 1979; petitioner No. 11 was appointed in the year 1982; petitioner Nos. 12 and 13 were appointed in the year 1983, petitioner No. 14 was appointed on 11.7.1969; petitioner No. 15 was appointed on 17.7.1973 and petitioner No. 16 was appointed on 18.7.1980. All the petitioner except the petitioners No. 11, 12 and 13 have competed five years'' service before issue of the Government order dated 25.11.1985. Petitioner No. 11 will complete five years in July, 1987 and petitioners No. 12 and 13 will complete their five years in July, 1988 petitioner Nos. 1 to 7, 14 and 15 will complete their five years'' service much before the year 1980. The primary section of the institution has been taken on grant in aid under the Payment of Salary Act only from 1.12.1985. Petitioners cannot claim any payment of salary in the C.T. Grade before 1.12.1985 i.e. before the primary section was taken on grant in aid. Even if some of the petitioners have become entitled for grant of C.T. Grade prior to 1.12.1985 they ought to have claimed the said benefit from the management and the State cannot be saddled by any such liability nor there is any justification for granting the benefit of C.T. Grade to the petitioners who completed five years even before 1.12.1985. The Management has also been labouring under misconception that the teachers of the primary school are not eligible for the benefits of C.T. Grade under Regulation 7 (2) and had not given the benefit to the petitioners, The Management''s statement before the Deputy Director of Education dated 16.3.2000 has been filed along with the affidavit of Smt. Maya Niranjan dated 22.5.2000 filed in support of an application in reply to the notice dated 12/16.5.2000. In the aforesaid statement the Management has stated that all the petitioners arc teaching from Class I to Class V hence they have no concern with the secondary classes. From the aforesaid statement it is clear that the Management''s stand taken before the Deputy Director of Education was also untenable and due to this erroneous view both the Management and the Deputy Director of Education committed error in denying benefit of C.T. Grade to the petitioners.

In view of the above discussion (the petitioners No. 1 to 10 and 14 to 16 are entitled for the benefit of C.T. Grade with effect from 1.12.1985 petitioner No. 11 with effect from 1.8.1987; petitioner No. 12 with effect from 1.12.1988 and the petitioner No. 13 with effect from 1.9.1998.

The petitioners have further raised a claim that they are entitled for grant of L.T. Grade after completion of ten years'' satisfactory service and after five years in C.T. Grade. Petitioners have relied on the judgments of Smt. Aruna Ghosh v. State of U.P. and Ors. (supra) with regard to the claim of L.T. Grade. This Court in the case of Smt. Aruna Ghosh has issued following direction in paragraphs 8 and 9 regarding claim of L.T. Grade. Paragraphs 8 and 9 of the aforesaid judgment is quoted below :--

"8. In view of the above discussion, I am of the considered view that the petitioner is entitled to be given C.T. Grade with effect from 19.2.1986 and his claim for L.T. Grade requires to be considered at the level of the District Inspector of Schools in accordance with law and in the light of the observation made in the body of judgment.

In the result the petition succeeds and is allowed. The respondents are directed to re-fix the salary of the petitioner in C.T. Grade with effect from 19.2.1986 and pay to him the arrears of salary and other emoluments accordingly. The District Inspector of Schools, shall examine the petitioner''s claim for L.T. Grade in accordance with law and in the light of the observation made in the body of this judgment, if possible, within three months from the date of receipt of the certified copy of this order".

In view of the above discussions respondents are directed to fix the petitioners salary in C.T. Grade with effect from 1.12.1985 regarding the petitioners No. 1 to 10 and 14 to 16; with regard to petitioner No. 11 from 1.8.1987; with regard to petitioner No. 12 from 1.12.1988 and with regard to petitioner No. 13 from 1.9.1988. With regard to the claim of the petitioner for grant of L.T. Grade the said claim be considered by the Regional Deputy Director of Education (IInd), Madhyamaik, Allahabad respondent No. 2 who will examine the petitioners'' claim for L.T. Grade in accordance with law. Petitioners No. 14 and 15 are not eligible for L.T. Grade hence their claim need not be considered.

In the result the writ petition is allowed. The order dated 19.5.2000 Annexure 22 to the writ petition is quashed and the respondents are directed to fix the salary for the petitioners in C.T. Grade with effec from 1.12.1985 regarding the petitioners No. 1 to 10 and 14 to 16, with regard to petitioner No. 11 from 1.8.1987; with regard to petitioner No. 12 from 1.12.1988 and with regard to petitioner No. 13 from 1.9.1988. With regard to the claim of the petitioner for grant of L.T. Grade the said claim be considered by the Regional Deputy Directory of Education (IInd), Madhyamik, Allahabad respondent No. 2 who will examine the petitioners'' claim for L.T. Grade in accordance with law. Petitioners No. 14 and 15 are not eligible for L.T. Grade hence their claim need not be considered.