Supreme Court - Daily Orders
The Director Of Education (Basic) ... vs Awadh Rani (Dead) Through Lrs. on 13 March, 2023
Bench: M.R. Shah, C.T. Ravikumar
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1689 OF 2023
(Arising out of SLP (C) No. 13426/2020)
THE DIRECTOR OF EDUCATION (BASIC) LUCKNOW & ORS. Appellant(s)
VERSUS
AWADH RANI (DEAD) THROUGH LRS. Respondent(s)
O R D E R
1. Leave granted.
2. We have heard Ms. Garima Prasad, learned AAG, appearing on behalf of the appellants and Dr. Vinod Kumar Tewari, learned counsel, appearing on behalf of the respondent-original writ petitioner.
3. The respondent-original writ petitioner was admittedly appointed in the year 1968 as part-time peon and continued to work, as such, till the Uttar Pradesh Board of Basic Education (for short “the Basic Education Board”) came to be constituted under the U.P. Basic Education Act, 1972. The original writ petitioner filed a writ petition before the High Court directing the Director of Education (Basic) Lucknow, U.P. to treat her as a regular Class-IV employee and to place her in the time-scale of pay applicable to regular Class-IV employees working in the permanent Schools under the Board. The learned Single Judge accepted the writ petition and Signature Not Verified issued the directions directing the Director of Education (Basic) Digitally signed by R Natarajan Date: 2023.03.15 15:57:20 IST Reason: U.P. to treat her as a regular Class-IV employee to place her in the time-scale of pay applicable to regular Class-IV employees 2 working in the primary schools under the Basic Education Board. A further direction was also given to pay the difference of pay between fixed pay drawn by the original writ petitioner and the regular pay-scales in which she was directed to be placed alongwith interest.
4. The order passed by the learned Single Judge came to be confirmed by the Division Bench of the High Court by the impugned judgment and order.
5. Hence the present Appeal by the Director of Education (Basic), Lucknow, U.P. and others.
6. Having heard learned counsel appearing for the respective parties and having gone through the material on record, it is not in dispute that the respondent herein-original writ petitioner was initially appointed and continued to work as part-time peon since 1968. Nothing is on record that thereafter her services were regularized and she was made the permanent employee. Therefore, at the time when the Basic Education Board came to be constituted w.e.f. 17.08.1972 and even when the U.P. Basic Education Act, 1972 came into force, she continued to work as part-time school mata. Therefore, even applying Section 9 of the U.P. Basic Education Act, 1972, at the most, she could have been brought under the services of the Basic Education Board as part-time school mata and nothing more than that and she shall be entitled to the same remuneration and upon same other terms and conditions of service as he/she have held the same if the Board had not been constituted. Section 9 reads as under:-
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“9.Transfer of Employees:
(1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are (altered by the rules made by the State Government in that behalf):
Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board:
Provided further that the board may employ any such teacher, officer or other employee in the discharge of such functions under this Act as it may think proper and every such teacher, officer or other employee shall discharge those functions accordingly. (2) Nothing in subsection (1) shall apply to any teacher, officer or other employee, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice, his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body, which shall be as follows
(a) in the case of a permanent employee, a sum equivalent to his salary (including all allowances) for a period of three months or for the remaining period of his service, whichever is less;
(b) in the case of a temporary employee, a sum equivalent to his salary (including all allowances) for one month or for the remaining period of his service, whichever is less.4
(3) Notwithstanding anything in subsection (1), any person referred to therein, who becomes an employee of the Board shall be liable to be transferred from the school or from the local area in which he was employed immediately before the appointed day to any other school or institution belonging to the Board or, as the case may be, to any other local area at the same remuneration and on the same other terms and conditions of service as governed him immediately before such transfer [until such tenure, remuneration and other terms and conditions are altered by the rules referred to in subsection(1)]:
Provided that no teacher of a basic school (which before the appointed day belonged to a local body) shall be transferred to a basic school belonging to any other local body except with his consent. (4) If any question arises whether the services of any person stand transferred to the Board under sub section (1) or as to the remuneration and other terms and conditions of service of such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final.
(5) Any provident fund maintained by any local body for the employees referred to in subsection (1) along with all contributions of such employees as well as of the local body which ought to have been but have not been deposited therein before the appointed day, shall be transferred by the local body to the Board, which shall hold it in trust for the employees concerned in accordance with the terms and conditions governing such fund.
(6) The transfer of services of any employee to the Board under subsection (1) shall not entitle any such employee to any compensation and no such claim shall be entertained by any Court, Tribunal or Authority.”
7. In that view of the matter, both, the learned Single Judge as well as the Division Bench of the High Court have materially erred in directing to treat the respondent-original writ petitioner as a regular Class-IV employee and to place her in the time-scale of pay 5 applicable to regular Class-IV employees working in primary schools under the Basic Education Board. Even applying Section 9 of the U.P. Basic Education Act, 1972, reproduced herein above, she shall have to be continued on the same post on which she was serving prior to the Board was constituted and on the same terms and conditions and on the same remuneration.
8. In view of the above, the present Appeal is allowed. The impugned judgment and order passed by the Division Bench of the High Court as well as that of the learned Single Judge are hereby quashed and set aside. However, the original writ petitioner shall be treated to have been continued in service as part-time under the Basic Education Board till the actual age of superannuation.
The present Appeal is, accordingly, allowed to the aforesaid extent. No costs.
...........................J (M.R. SHAH) ...........................J (C.T. RAVIKUMAR) New Delhi;
March 13, 2023
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ITEM NO.24 COURT NO.4 SECTION XI
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 13426/2020
(Arising out of impugned final judgment and order dated 27-01-2020 in SA No. 1565/2009 passed by the High Court Of Judicature At Allahabad) THE DIRECTOR OF EDUCATION (BASIC) LUCKNOW & ORS. Petitioner(s) VERSUS AWADH RANI (DEAD) THROUGH LRS. Respondent(s) IA No. 115233/2020 - EXEMPTION FROM FILING O.T. Date : 13-03-2023 This matter was called on for hearing today. CORAM : HON'BLE MR. JUSTICE M.R. SHAH HON'BLE MR. JUSTICE C.T. RAVIKUMAR For Petitioner(s) Ms. Garima Prasad, AAG/Sr.Adv.
Mr. Harish Pandey, AOR For Respondent(s) Dr. Vinod Kumar Tewari, AOR Mr. Syed Mohd. Muztba, Adv.
Mr. Pramod Tiwari, Adv.
Mr. Vivek Tiwari, Adv.
Mr. Bhoopesh Pandey, Adv.
Ms. Priyanka Dubey, Adv.
Ms. Archna Pandey, Adv.
UPON hearing the counsel the Court made the following O R D E R Leave granted.
The present Appeal is allowed to the extent as indicated in the signed order.
Pending applications, if any, stand disposed of.
(R. NATARAJAN) (NISHA TRIPATHI)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)