Lakhraniya Devi vs State Of U.P. & Ors.

Heard Shri Santosh Kumar Rai, Advocate appearing on behalf of the petitioner and Prem Chand Pandey, Advocate appearing on behalf of respondent no.4 and learned Standing Counsel for the respondent nos.1 to 3.

Rejoinder affidavit to the counter affidavit of Committee of Management filed today, the same is taken on record.

The present petition has been filed challenging the order dated 07.05.2018 passed by the respondent No.2, by way of which, without giving any consideration to the documents submitted by the petitioner on 05.07.2017 or returning a finding to the said effect, merely by stating that the husband of the petitioner had never received the salary from the State Exchequer and as per the Principal's report that the appointment of the petitioner's husband was not in accordance with law, the claim for arrears of salary towards the services rendered by the petitioner's husband and the consequential retiral benefits has been denied.

The contention of the learned counsel for the petitioner is that the said finding is against the evidence on record, as the Manager of the Institution vide its letter dated 25.07.2015 has specifically stated that the petitioner's husband was appointed on 15.04.1964, adhering to the due process of law and he was discharging his duties continuously since his date of appointment till his date of superannuation i.e. 30.06.2000; and thereafter he had died on 16.03.2004.

Learned counsel for the petitioner has further placed reliance on a decision of an intra-court appeal being Special Appeal No. 352 of 2005 (State of U.P. and others Vs. Bhrigunath Ram and others) wherein the Division Bench of this Court while observing that, the question whether the petitioners in the writ petitions were validly appointed teachers has not been adjudicated at any stage; had given a direction to the concerned authorities to examine the appointment of the petitioners and in case appointment of the petitioners are found to be in accordance with law, salary may be paid after giving due opportunity of hearing and a reasoned order was required to be passed.

For ready reference, the operative portion of the judgement dated 23.03.2015 is reproduced below: -

It appears that while taking a decision on the issue, an inspection which was made much later in time, a report was submitted that five incumbents were found to be working; and obviously the name of the petitioner's husband was not there since he had already expired by then, after having retired on 30.06.2000. The said consideration in the impugned order dated 28.05.2015 is also reproduced herein below: -

Learned counsel for the petitioner further submits that, the issue regarding the payment of salary, to the attached primary sections, is no longer res integra and it has been conclusively determined by this Court, as well as the Apex Court, that teachers of primary section classes, which has been given due recognition and is attached to Junior High School, are entitled to the benefit of Section 10 of the Act, 1978; and as such schools having the Junior Basic School and Senior Basic School either separately or together or under the same Board, i.e., the Board of Basic Education as per Act, 1972, are entitled to salary; and any other view may render the provisions of Act, 1978 unconstitutional on the ground of discrimination.

This Court has already held that Junior High School (Class 1 to 5), when they are opened in a Senior Basic School (Class 6 to 8), after obtaining separate recognition and for which there may not be a separate order of grant-in-aid by the government, are entitled to salary.

Even otherwise, if any objection which the State could have had regarding the payment of salary from the State Exchequer, also does not seems to be reasonable as the perusal of the letter dated 15.01.2005, clearly indicates that the District Inspector of Schools, Ballia had sought the salary bills of the employees of the same Institution from December, 2004; and thereafter the salary to the other employees of the same Institution is being paid.

In view of the aforesaid, it has been contended, that once the petitioner's husband being appointed, as per procedure prescribed; and the said documents were before the authorities concerned by way of letter dated 25.07.2015, it was incumbent upon the authorities to consider the said claim; and not confine it’s consideration, to the said five teachers who were found working in the month of December, 2004.

For ready reference, the letter indicating the aforesaid position, dated 15.01.2005 is reproduced below:

The petitioner has also placed before this Court an appointment letter dated 27.11.1995 which was written by the Principal to the Deputy Director of Education; wherein also the name of the petitioner's husband is placed at Serial No.1. The letter of appointment dated 15.01.1965 is also on record.

It has also not been disputed that the petitioner was contesting the matter before this Court since 1996, which is evident from the filing of Writ Petition No. 25161 of 1996 (Shri Bhrigunath Ram and others vs. State of U.P. and others); and the said proceeding was clubbed with the proceedings initiated by other employees, i.e., by way of Writ Petition No. 54865 of 1996 (Shri Tarkeshwar Nath Singh Vs. State of U.P. and others); and as such the non-consideration of the various letters which indicated the appointment of the petitioner's husband, is also prima facie not in adherence to the judgment dated 23.03.2015 in Special Appeal No. 532 of 2005 (State of U.P. and others vs. Bhrigunath Ram and others).

Learned Standing Counsel does not dispute the settled legal proposition, that the primary school teachers were also entitled to the payment of salary without any separate order of grant-in-aid; if they are attached to the senior sections; but however maintains that the appointment of the petitioner was to be verified; but at the same time does not dispute that the validity of the appointment was only considered on the basis that he was not found to be working in a report which was submitted somewhere in December, 2004; and admittedly the petitioner's husband by the said date had already retired on 30.02.2000 and subsequently died on 16.03.2004.

In view of the aforesaid, this Court finds that the order dated 28.05.2025 does not consider the said question and even when the impugned order dated 07.05.2018 was passed in pursuance of the direction of this Court, due consideration was not given, though admittedly the petitioner has already filed her reply and the documents are also said to have been filed by the Management pertaining to appointment of the petitioner's husband.

The respondent No. 4 has also filed its counter affidavit and in the said affidavit it has been mentioned that the petitioner's husband had superannuated on 30.06.2000 after completing entire service and later he died on 16.03.2004.

For ready reference, paras 6, 7 and 8 of the counter affidavit filed on behalf of respondent No. 4 are reproduced below:

In view of the aforesaid, the impugned order dated 07.05.2018 cannot be sustained to the extent it rejects the claim of the salary of the petitioner's husband and the consequential retirement benefits; and however, in view of the observations and the documents brought on record by none other than the respondents, the matter stands relegated to the respondent No. 2, i.e., the District Inspector of Schools, Ballia to consider the documents which have been placed by the Management as well as the petitioner in support of the appointment of the petitioner's husband and pass a reasoned order strictly adhering to the principles of natural justice and taking into account the observations made by this Court herein above, expeditiously, preferably within a period of two months from the date of filing of a detailed representation along with the supporting documents by the petitioner.

It is made clear that the claim of the petitioner shall not be non-suited merely on account of the fact that prior to the date of death or the date of retirement he was not paid any salary from the State Exchequer; as admittedly the same was only released by the State in the year 2005 with respect to other employees of the same Institution and the scrutiny shall be strictly confined to the validity of the appointment of the petitioner's husband.

With the aforesaid observations / directions, the writ petition stands allowed.