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2013 DIGILAW 199 (ALL)

Hema Pathak v. State of U. P. and Others

2013-01-16

SURENDRA VIKRAM SINGH RATHORE

body2013
Surendra Vikram Singh Rathore, J.— Heard learned counsel for the parties and perused the record. 2. By means of instant writ petition, the petitioner has made the following prayer:- "(i) a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to grant pension of the petitioner with effect from 1.7.2003 in the pay scale admissible to the post of Assistant Teacher of L.T. Grade, on which she was promoted by the Committee of Management of the College, in accordance with law; (ii) a writ, order or direction in the nature of mandamus commanding and directing the opposite parties to pay and disburse the arrears of salary for the period from 19.5.2003 to 30.6.2003 and the arrears of regular pension payable to the petitioner with effect from 1.7.2003 along with interest @ 18% per annum; (iii) a writ, order or direction in the nature of certiorari quashing the order dated 24.5.2007 passed by the opposite party no.3, as contained in Annexure No.9 to the writ petition." 3. Brief facts necessary for disposal of the instant writ petition are that the petitioenr was appointed as Assistant Teacher (B.T.C. Grade) in Primary Section of Sahai Singh Balika Vidyalaya Inter College, Narahi, Lucknow. 4. The State Government in exercise of powers under sub-section (2) of Sec;ion 16 of the Intermediate Education Act, 1921 vide G.O. No. 259/15-7-2003-1(3)/2003 granted sanction to the amendment in regulation 7 (2) of the Regulations made by the Board for appointment of Principal and Teachers of the institutions. This amendment was notified by the Board vide notification No. Parishad-9/741 dated 26th February 2003 and published by the State Government in the official gazette dated 1st March, 2003. It provides that the Committee of Management of those Intermediate Colleges and Higher Secondary Schools in which primary classes are running and teachers of primary section are getting salary under the provisions of U.P. Hgih School and Intermediate Colleges (Payment of Salaries to the Teachers and other Employees) Act, 1971, shall fill the vacancies available in L.T. Grade in the College by promotion to the extent of 25% from amongst those teachers of primary section who are trained graduate and have completed 5 years' satisfactory services in that capacity and the Committee of Management shall intimate the Inspector of such promotion. 5. 5. Thereafter on 18.5.2003 the Committee of Management of the College passed resolution granting promotion to the petitioenr along with three others on the post of Assistant Teacher in L.T. Grade under 25% quota reserved for promotion from teachers of Primary Section. 6. On 19.5.2003 the Manager of the College intimated the promotion of the petitioner to the District Inspector of Schools as required by regulation 7(2) of the Regulations. The petitioenr attained the age of superannuation on 30.6.2003 but neither he was paid difference of salary of L.T. Grade from the date of his promotion nor pension as admissible to L.T. Grade Teacher was sanctioned in his favour. Feeling aggrieved thereby the instant writ petition has been filed. 7. The grievance of the petitioenr is that under the Regulation 7(2-A) it is only intimation which is to be furnished by the Management to the DIOS and prior or subsequent approval of DIOS is not required for the purpose of promotion under the reserved quota for promotion of the teachers of the Primary Schools. Since her promotion was duly communicated to the DIOS, therefore, she was entitled for pay of the L.T. Grade teacher and also consequential benefits. 8. In the counter affidavit, it is submitted that promotion of the petitioner was not approved by the DIOS and the same could not be implemented and the petitioner retired from service on 30.6.2003, as such the petitioner was never promoted on the post of Assistant Teacher L.T. Grade. It is further submitted that since the petitioenr was not promoted, therefore, under the rules she was not entitled for the pension becuase the pension to such class of teachers was made admissible vide G.O. dated 28.1.2004 and prior to that date petitioner stood retired. 9. It is further submitted that since the petitioenr was not promoted, therefore, under the rules she was not entitled for the pension becuase the pension to such class of teachers was made admissible vide G.O. dated 28.1.2004 and prior to that date petitioner stood retired. 9. The entire controversy in this case revolves around the provision under Chapter II, 7(2-A) of Regulation of Board which provides as under:- "[2-A] Aise Intermediate College evam High School jinse sambaddh Primary Anubhag ke adhyapak Uttar Pradesh High School tatha Intermediate College (Adhyapakon tatha anya karmchariyon ke vetan bhugtan) aDhiniyam 1971 ke pravidhanon ke antargat vetan bhugtan prapt karte hain, men uplabdh prashikshit snatak shreni ke kul padon ke 25 partishat pardon ko prabandh samiiti dwara sambaddh Primary anubhag mein karyarat aise adhyapakon se padonnati dwara bhara jayega, jinohne primary adhyapak ke rup mein panch varshon ki sewa puri kar li hai tatha wah prashikshit snatak ho aur aise padonnati ki suchana nirikshak ko turant di jayegi. 3. Yadi nirikshak ko yeh vishwas karne ka karan ho ki khand (2) ke adhin koyee padonati ukt adhiniyam aur viniyamon ke ullanghan mein ki gayee hai to is nimitt ki ja sakne wali kisi anya karyawahi par partikul prabhaw dale bina wah mamle ka nirdesh nideshak ko kar sakta hai jiska vinishchaya is vishay mein antim hoga." 10. A perusal of the aforementioned regulation 7(2-A) makes it clear that it only provides for giving an intimation to DIOS and such promotion does not require the prior approval of DIOS. In the facts of the instant case, the DIOS had not taken any decision on such proposal which was neither rejected nor any reason was given as to why promotion of the petitioner is irregular. nor the matter was referred to director. The aforementioned regulation requires only the intimation, which was duly given to the DIOS concerned. Therefore, the submission of learned counsel for the opposite parties that in absence of approval by the DIOS the petitioner cannot be treated to have been promoted on the post of Assistant Teacher L.T. Grade, therefore, she is not entitled to pay difference of salary and other benefits which is admissible to the Assistant Teacher L.T. Grade has no legs to stand. This defence by the opposite parties is not tenable in view of the aforementioned regulation.Because no illegality or irregularity was pointed out by the D.I.O.S. in the said promotion. 11. Therefore, this writ petition deserves to be allowed and is, accordingly, allowed. The opposite parties are hereby directed to pay difference of salary to the petitioner which is admissible to the Assistant Teacher L.T. Grade. She shall also be entitled for all other benefits which are admissible to Assistant Teacher L.T. Grade under law. Compliance of this order shall be ensured within a period of three months from the date a certified copy of this order is produced before them. _____________