JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri M. A. Qadeer, learned Counsel for the petitioner. Learned Standing Counsel has appeared for respondent No. 4. The statement has been made by Smt. Puspa Singh holding brief of Sri K.S. Shukla Counsel appearing for the respondent No. 1 that Sri Shukla has no further instructions to appear on behalf of the respondent No. 1. 2. By this writ petition the petitioner has prayed for certiorari quashing the order dated 17.11.1990 passed by the respondent No. 1. An amendment has also been sought commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher Urdu in Junior High School Sadar Bazar, Kanpur Nagar, Kanpur. By an amendment the petitioner has been permitted to add the following three reliefs in the writ petition : “(e) to issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner as Assistant Teacher, Junior High School w.e.f. 25.3.1975 and to pay balance of her salary in said grade revised from time to time. (f) to issue a writ, order or direction in the nature of mandamus commanding the respondents to regularise the petitioner as Assistant Teacher in Junior High School Grade and to give her all consequential benefits w.e.f. 22.3.1985 from which date all other teachers have been given. (g) to issue a writ, order or direction in the nature of mandamus commanding the respondents to give the charge of Head Mistress of Kanya Junior High School, Sadar Bazar, Kanpur. 3. Brief facts of the case necessary for deciding the writ petition are : The petitioner was appointed as Assistant Teacher Urdu in Junior Basic School, Chakeri, Nagar Maha Palika, Kanpur by order of the Basic Shiksha Adhikari dated 9.1.1974. By order dated 22.3.1976 the petitioner was transferred to Junior Basic School, Sadar Bazar Kanpur Nagar, Kanpur. The order further provided that the petitioner be paid salary of primary teacher. Petitioner joined as Assistant Teacher in Junior Girls School, Sadar Bazar on 25.3.1975. The petitioner was confirmed by order dated 4.4.1981 on the post of Assistant Teacher Urdu. During service the petitioner was sent for B.T.C. training in 1977. Petitioner also passed Intermediate with Urdu in the year 1976-1977. Petitioner joined as Assistant Teacher in Junior Girls School, Sadar Bazar on 25.3.1975. The petitioner was confirmed by order dated 4.4.1981 on the post of Assistant Teacher Urdu. During service the petitioner was sent for B.T.C. training in 1977. Petitioner also passed Intermediate with Urdu in the year 1976-1977. The State Government issued a Government order dated 15.10.1984 creating 5000 posts of Assistant Teacher Urdu in Senior Basic School/Junior High School run by the U.P. Basic Education Board. The Government order noticed that Assistant Teacher in Urdu are appointed in Half a Million Job Scheme in Senior Basic School. It was decided that those teachers be given appointment against newly created posts provided they have passed Intermediate Examination with Urdu and are trained. The Government order contemplated that it be ensured that in the urban and rural areas of Senior Basic Schools not more than one teacher be appointed in pursuance of the Government order dated 15.10.1984. The Director of Education issued a letter to the Chairman Basic Shiksha Parishad dated 20.10.1984/13.11.1984 provided for methodology for making appointment on newly created 5000 posts of Assistant Teacher Urdu. The order noted that earlier in half a Million Job Scheme on 1027 post the Urdu teachers were appointed in the pay scale of primary teachers, thus the teachers be given appointment as Assistant Teacher in Senior Basic School. It was further provided that thereafter after deducting the post equivalent to working Assistant Teacher on the rest of the post appointment be made in accordance with the U.P. Basic Education Teachers Service Rules, 1981. The Basic Education Officer passed an order on 24.1.1985 appointing/absolving certain teachers in Junior\Basic Schools in the pay scale of Rs. 450-720/-. Petitioner by an order dated 5.12.1985 passed by the Education Superintendent, was attached with Primary Pathshala, Benajhawar, Kanpur. Petitioner submitted representation for giving herself the benefit of the Government order dated 15.10.1984. Petitioner claimed that petitioner is being denied benefit of the Government order dated 15.10.1984. Representation also stated that the service records of the petitioner were called for by the District Basic Education Officer by several letters including the letter dated 21.7.1987 but the same was not submitted due to which petitioner has been denied the benefit. Petitioner has given an application that the petitioner be returned to Junior High School, Sadar Bazar. Representation also stated that the service records of the petitioner were called for by the District Basic Education Officer by several letters including the letter dated 21.7.1987 but the same was not submitted due to which petitioner has been denied the benefit. Petitioner has given an application that the petitioner be returned to Junior High School, Sadar Bazar. An order dated 13.11.1990 was passed cancelling the attachment of the petitioner with Primary Pathshala, Benajhawar and re-appointing the petitioner to Junior High School, Sadar Bazar. The order, however, stated that the petitioner shall be paid salary of primary grade. Petitioner was relieved and joined in Junior High School, Sadar Bazar on 14.11.1990. By an order dated 17.11.1990 the earlier order dated 13.11.1990 was cancelled on the ground that the original institution of the petitioner is not Kanya Junior High School, Sadar Bazar. This writ petition was filed by the petitioner praying for quashing the order dated 17.11.1990. This Court granted an interim order on 4.12.1990 staying the order dated 17.11.1990 in consequence of which the petitioner is working in Kanya Junior High School, Sadar Bazar, Kanpur Nagar. 4. Learned Counsel for the petitioner contended that the petitioner having joined the Kanya Junior High School, Sadar Bazar, Kanpur Nagar on 25.3.1975 and is working since then in Kanya Junior High School, Sadar Bazar, is entitled for salary of Assistant Teacher Junior High School with effect from 25.3.1975. The alternate submission of the learned Counsel for the petitioner is that the petitioner is entitled for grade of Assistant Teacher Junior High School with effect from 22.3.1985 from which date all other teachers have been given the Junior High School grade. 5. A counter-affidavit in the writ petition was filed on behalf of the respondent No. 1 on 4.5.1992 subsequently the petitioner filed a supplementary affidavit alongwith the amendment application on 23.2.2005. The amendment application was allowed by the Court on 28.2.2005. By supplementary affidavit petitioner brought on the record the copy of the Government order dated 15.10.1984, a copy of the representation submitted by the petitioner for getting the benefit of Junior High School grade, the letter of the Basic Shiksha Adhikari and certain other materials. This Court allowed time to the respondents to file supplementary counter-affidavit which was filed on 27.3.2006. The supplementary rejoinder affidavit was also filed. This Court allowed time to the respondents to file supplementary counter-affidavit which was filed on 27.3.2006. The supplementary rejoinder affidavit was also filed. The writ petition was heard on 16.5.2006 and following order was passed on 16.5.2006 : “ Heard Sri M. A. Qadeer learned Counsel for the petitioner. The submission of Sri Qadeer is that petitioner is entitled to be given the grade of Assistant Teacher Junior High School in view of the G.O. dated 15.10.1984 by which five thousand posts of Assistant Teachers were created and those persons who were already working in the primary Section under the Half Billion Job Scheme and teaching Urdu were required to be adjusted. He further submits that all primary teachers except the petitioner have been given the grade of Junior High School but the petitioner has been denied the same. Sri K. S. Shukla, learned Counsel for the respondents prayed for time to obtain instructions as to whether the persons who were junior to the petitioner as Assistant Teacher in primary school have been given the benefit of Junior High School and from which date Sri Shukla may also obtain instructions as to from which date the petitioner’s claim is entitled to be considered for the grade of Junior High School. List for further hearing on 26th May, 2006.” 6. After the order dated 16.5.2006 although time was taken by the learned Counsel appearing for the respondent No. 1 for obtaining instructions but the Court has not been informed about any instructions with regard to the issue as noticed in the order dated 16.5.2006. In the counter-affidavit filed by the respondent No. 1 this fact was admitted that the petitioner was appointed as Assistant Teacher Urdu in Half Million Job Scheme. The counter-affidavit stated that such appointee could be posted to Junior High School for teaching Urdu but were entitled under the Scheme the grade applicable to the Assistant Teacher in Junior Basic School. It is relevant to note that the averments made in paragraph 6 of the counter-affidavit which are to the following effect : “6. That in reply to the averments made in para 8 and 9 of the Supplementary affidavit it is stated that all Assistant Teachers of Junior Basic School were confirmed as such together. At that time the petitioner was only attached to Junior High School as an Assistant Teacher of Junior Basic School.” 7. That in reply to the averments made in para 8 and 9 of the Supplementary affidavit it is stated that all Assistant Teachers of Junior Basic School were confirmed as such together. At that time the petitioner was only attached to Junior High School as an Assistant Teacher of Junior Basic School.” 7. In the supplementary counter-affidavit by which reply of the supplementary affidavit has been given, it has been admitted that certain posts were created of Assistant Teacher Urdu in the year 1985 but the petitioner was never appointed in pursuance of the Government order of 1985. It has been stated that the petitioner was appointed as Assistant Teacher in Junior Basic School as such having lien in the primary school and the petitioner is entitled only salary of primary school. 8. Sri M. A. Qadeer learned Counsel for the petitioner in support of the writ petition made following submissions : 1. The petitioner is entitled for payment of salary in the Assistant Teacher Junior High School with effect from 25.3.1975 when she was posted in Kanya Junior High School, Sadar Bazar, Kanpur Nagar, Kanpur and started teaching Junior High School classes. 2. That in any view of the matter under the Government order dated 15.10.1984 the petitioner was entitled for appointment against the post of Assistant Teacher Senior Basic School (Junior High School ) created by the Government order dated 15.10.1984 and from 22.3.1985 .when all other similarly situated teachers were given the grade of Assistant Teacher Junior High School; the petitioner was entitled for the same grade. 3. That all the teachers who were appointed as Assistant Teacher Urdu in Primary institutions in whole of the district of Kanpur Nagar has been granted such grade and has continuously been paid salary of the Assistant Teacher Junior High School. 4. Some of the teachers appointed alongwith the petitioner and some of the teachers who were junior to the petitioner were again given promotion on 30.6.2003 as Assistant Teacher Junior High School defeating the rights of the petitioner. 9. The first question which has arisen for consideration in the writ petition is as to whether the petitioner is entitled for the payment of salary as Assistant Teacher Junior High School with effect from 25.3.1975 when the petitioner was posted in Kanya Junior High School, Sadar Bazar and started teaching in Junior High School classes. 9. The first question which has arisen for consideration in the writ petition is as to whether the petitioner is entitled for the payment of salary as Assistant Teacher Junior High School with effect from 25.3.1975 when the petitioner was posted in Kanya Junior High School, Sadar Bazar and started teaching in Junior High School classes. The appointment of the petitioner was made in Junior Basic School as Assistant Teacher Urdu. The petitioner was transferred to Kanya Junior High School, Sadar Bazar by order dated 22.3.1975 in pursuance of which she joined at Kanya Junior High School, Sadar Bazar on 25.3.1975. The copy of the transfer order has been filed as Annexure-2 to the writ petition (the date being wrongly mentioned as 22.3.1976 ). The said order clearly mentions that the petitioner be paid salary only of primary school. Thus the petitioner having been transferred in Junior High School with stipulation that she will get salary of only primary, no claim can be made by the petitioner for payment of salary of Junior High School on the ground that she started teaching in Junior High School from 25.3.1975. In paragraph 6 of the counter-affidavit as noticed above it was specifically stated that the teachers appointed as Assistant Teacher Urdu under Half Million Job Scheme can be posted to Junior High School also for teaching Urdu but were entitled under the scheme to a grade applicable to Assistant Teachers in Junior Primary Section (Primary School). Thus by mere teaching in Junior High School with effect from 25.3.1975 petitioner did not become entitle for payment of salary of Junior High School. Thus the first prayer of the petitioner praying for direction to pay salary with effect from 25.3.1975 in a Junior High School grade, cannot be granted. 10. Now comes the second submission of the Counsel for the petitioner for payment of salary as Assistant Teacher Junior High School in accordance with the Government order dated 15.10.1984. Copy of the Government order dated 15.10.1984 has been brought on record as Annexure 11 to the Supplementary affidavit. By Annexure-12 the letter of the Director of Education issued in pursuance of the said Government order providing for methodology of appointment/absorption against the newly created 5000 posts has been brought on record. Copy of the Government order dated 15.10.1984 has been brought on record as Annexure 11 to the Supplementary affidavit. By Annexure-12 the letter of the Director of Education issued in pursuance of the said Government order providing for methodology of appointment/absorption against the newly created 5000 posts has been brought on record. In the Supplementary affidavit the petitioner has also brought on record Annexure-8 which is letter dated 3.12.1984 directing the District Basic Education officer of all the districts of the State which provided that first those primary teachers who are having qualification of Urdu of having passed Intermediate with Urdu also be given preference and thereafter teachers appointed under the half a Million Job Scheme be absorbed and thereafter by direct recruitment firstly trained teachers be appointed and thereafter if any vacancy is left then untrained teachers be appointed. The petitioner’s case is that the petitioner was working in Junior High School and under the said Government order was entitled for the grade of Junior High School but the petitioner was sent to Primary Section in July, 1985 and denied the benefit. Petitioner claimed to have submitted representation to the authorities claiming for benefit of such Government order. Petitioner’s case further is that the District Basic Education officer passed an order directing the Education Superintendent by letter dated 28.2.1987 to forward the service book of the petitioner but the Education Superintendent did not send the service book of the petitioner. Petitioner has also brought on record the detailed representation dated 11.4.1987 Annexure-19 to the writ petition by which the petitioner again claimed the grade of Junior High School. Petitioner stated in paragraph 4 of the representation that for giving benefit of the Government order dated 15.10.1984 the petitioner was also called by the Education Superintendent vide letter dated 22.1.1985 to submit attested copies of the educational certificates and the amount of Rs. 10,000/- was demanded from her which could not be paid by the petitioner hence she was not given junior High School grade. The petitioner was again sent to Kanya Junior High School, Sadar Bazar vide letter dated 13.11.1990 in pursuance of which she joined on 14.11.1990 at Kanya Junior High School, Sadar Bazar. The petitioner in the supplementary affidavit has claimed Junior High School grade on the basis of the Government order dated 15.10.1984. The petitioner was again sent to Kanya Junior High School, Sadar Bazar vide letter dated 13.11.1990 in pursuance of which she joined on 14.11.1990 at Kanya Junior High School, Sadar Bazar. The petitioner in the supplementary affidavit has claimed Junior High School grade on the basis of the Government order dated 15.10.1984. A detailed counter-affidavit has been filed by the Basic Shiksha Adhikari in which although it was admitted that the post of Assistant Teachers were upgraded by the Government order but the petitioner was never appointed in pursuance of the Government order as mentioned in paragraph 7 of the supplementary counter-affidavit. In paragraph 8 of the supplementary counter-affidavit it was again stated that the petitioner was not selected Assistant Teacher in pursuance of the Government order dated 15.10.1984. In whole of the supplementary counter-affidavit it is not mentioned as to what were the reasons for not giving benefit of the Government order dated 15.10.1984 to the petitioner when the said benefit was given to other teachers of the district. The petitioners had specifically claimed for such grade from the respondents by submitting detailed representation on which the service book of the petitioner was also called for by the Basic Shiksha Adhikari. 11. A perusal of the Government order dated 15.10.1984 and the consequential orders issued by the Director of Education dated 20.10.1984 and 13.11.1984 and the letter of the Additional Director of Education dated 3.12.1984 makes it clear that the Assistant Teachers working in the primary Schools who were appointed under Half Million Job Scheme, were entitled to be absorbed on the newly created posts of Senior Basic School/Junior High Schools. No selection on these posts amongst the Assistant Teachers working under Half Billion Job Scheme was contemplated rather newly created 5000 posts of Assistant Teachers in Junior High Schools were required to be filled according to the methodology as indicated in the Government order and the letter dated 3.12.1984. No reason is forthcoming in the counter-affidavit as well as in the supplementary counter-affidavit as to why the petitioner was not entitled for the benefit under the said Government order. It is relevant to note that the Government order dated 15.10.1984 was also implemented in the district Kanpur Nagar and several Urdu teachers working in the primary schools were given Junior High School grade on 24.1.1985 Annexure-9 to the writ petition. It is relevant to note that the Government order dated 15.10.1984 was also implemented in the district Kanpur Nagar and several Urdu teachers working in the primary schools were given Junior High School grade on 24.1.1985 Annexure-9 to the writ petition. Although in the writ petition the petitioner claimed that her name was mentioned in the letter dated 24.1.1985 but in her rejoinder affidavit she has admitted that the name of Kaneej Begum mentioned in the order was a different teacher and not the petitioner. However, from perusal of the letter dated 24.1.1985 it is clear that no teacher was given grade of Junior High School in the institution where the petitioner was working i.e. Kanya Junior High School, Sadar Bazar which school does not find mention in the said letter. As noted above, the petitioner had also been working in the Junior High School from 25.3.1975 to 5.7.1985 and teaching High School classes. It is also relevant to note that after the petitioner was again transferred/posted in Kanya Junior High School, Sadar Bazar with effect from 14.11.1990 the petitioner is continuing to work in the Kanya Junior High School, Sadar Bazar as the order dated 17.11.1990 sending the petitioner back to Benajhawar was stayed by this Court. Petitioner is thus also functioning again from 14.11.1990 in Kanya Junior High School, Sadar Bazar. This writ petition is pending since 3.12.1990 more than sixteen years have passed and the writ petition remains pending. The Government order dated 15.10.1984 did not contemplate any promotion or selection but contemplate appointment against the post created in Senior Basic School Junior High School. The petitioner having been denied her claim under the said Government order to which she was fully entitled the action or inaction of the respondent in not giving due benefit to the petitioner has already deprived the claim of the petitioner for a long time. In the facts of the present case I am not inclined to again direct the respondents to consider the claim and pass necessary orders specially when the appointment/ absorption against the post in Junior High School were not based on promotion or selection. Thus the petitioner has clearly made out a case for issuing a direction to the respondents for giving petitioner the grade of Junior High School in pursuance of the Government order dated 15.10.1984. Thus the petitioner has clearly made out a case for issuing a direction to the respondents for giving petitioner the grade of Junior High School in pursuance of the Government order dated 15.10.1984. The question now arises as to above benefit be given to the petitioner from which date. The petitioner has claimed the benefit from 22.3.1985 on which date according to the petitioner other teachers have been granted benefit. This writ petition has been filed in this Court on 3.12.1990. As noticed above, from July 1985 to 13.11.1990 the petitioner was sent to Primary Pathshala, Benajhawar, Kanpur Nagar. The petitioner again started working in Kanya Junior High School, Sadar Bazar with effect from 14.11.1999. Ends of justice be served and equities be adjusted in directing the respondents to give benefit to the petitioner of payment of salary in Junior High School grade (Rs. 450-770/-) as revised from time to time with effect from 3.12.1990 the date when this writ petition was filed. The Basic Shiksha Adhikari is directed to fix the petitioner’s salary accordingly within a period of one month from the date of production of this order. After fixation the petitioner shall be paid her salary according to said fixation order. The respondents shall also pay arrears of salary to the petitioner consequence to such fixation expeditiously preferably within a period of three months from the date of such fixation. 10. With the aforesaid direction the writ petition is partly allowed. ————