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Judgment
Hon'Ble Pankaj Bhatia, J.
Heard learned counsel for the petitioners and Sri Pradeep Kumar Singh, learned Additional Chief Standing Counsel and Dr. Uday Veer Singh, Sri Ran Vijay Singh, Sri Kumar Ayush, Sri Prashant Kumar Singh, Shailendra Singh Rajawat, Kuldeep Tiwari, learned counsels for the respondnets-BSA.
The present petition has been filed by the petitioners, claiming that they are working as an acting headmaster and thus, they are entitled to the salary, which is payable to the headmaster, a common ground taken was that in the absence of an officially appointed headmaster, the petitioners were working since various dates and were not paid the salary which is payable to the headmaster in terms of the provisions of the statute. It is argued that this issue was raised by similarly placed petitioners by filing Writ A No. 18228 of 2022, Tripurari Dubey & Anr. vs. State of UP. The Single Judge of this Court, considered the submission as well as the earlier judgments and ultimately decided the writ petition by issuance of a mandamus commanding the respondents to pay the arrears of salary with all consequential benefits from the date from which, the petitioners were working as officiating headmasters of the institution.
The said order passed by the learned Single Judge was challenged by the State by filing Special Appeal No. 652 of 2024, the Special Appeal Court decided the same, vide its judgment dated 30.05.2025. By virtue of the said judgment, the Special Appeal Court accepted the claim for payment of the salary to the officiating headmasters, equal to the salary of headmaster in para 17.
However, on the basis of submissions made by the appellant before the learned Division Bench, to the effect that although, the directions were issued by the learned Single Judge for payment of salary from the date on which, the petitioners were working as an officiating headmaster, their grievances were raised much subsequently and thus in terms of the judgment of the Supreme Court in the case of Union of India & Others v. Tarsem Singh, (2008) 8 SCC 648, a contention was made that the claims could be made by the petitioner only for a period of three years and the directions could also be issued only for a period of three years.
The learned Division Bench also noted that the judgment of the Supreme Court in the case of Tarsem Singh was subsequently followed by the judgment of the Supreme Court in the case of Bichitrananda Behera v. State of Orissa & Ors. , 2023 SCC OnLine SC 1307 as well as, a Division Bench of this Court in the case of Urmila Devi Pal vs. State of UP & Ors., 2023 (6) ADJ (DB)(LB). The said contention of the State, found favor with the Division Bench and in that context, the Division Bench modified the order passed by the learned Single Judge, granting the benefits only for a period of three years prior to filing of the writ petition by the individuals, paras 17, 18, 19 & 20 of the said judgment are quoted herein below:
"17.We are thus of the view that headmaster's salary ought not be denied to the assistant teachers when they are regularly performing work on the higher post of headmaster for the last several years.
18.Lastly, learned counsel for the appellants submits that the direction of learned Single Judge to pay the salary for the post of headmaster since 2014 is otherwise impermissible in as much as no grievance was earlier raised by the writ petitioners with regard to denial of salary for the higher post and the writ petitions have been filed only in the year 2022 to 2024. Reliance is placed upon the judgment of Supreme Court in Union of India and others Versus Tarsem Singh, (2008) 8 SCC 648 to contend that at best a direction for arrears up to a period of three years could have been issued in favour of the writ petitioners. The judgment in Tarsen Singh (supra) has been followed in subsequent judgment of Supreme Court in Bichitrananda Behera Versus State of Orissa and others, 2023 SCC OnLine SC 1307. A Lucknow Bench of this Court in Urmila Devi Pal Versus State of U.P. and others, [2023(6) ADJ (DB)(LB)] also followed the similar judgment.
19.We find substance in the contention of Sri K. Shahi that the direction to pay arrears could not have been issued in a mechanical manner particularly when no grievance was raised by such persons earlier. Though it is stated that previous representations were made by the writ petitioners but such grievance apparently was not pressed till filing of the writ we are thus of the view that even if the petitioners have continued for long as headmaster the direction to pay the arrears could only extend up to three years prior to filing of the writ petition.
20.In view of the discussions and deliberations held above this bunch of special appeal stands disposed of with following observation: (i) we grant liberty to the concerned District Basic Education Officer to examine and determine the factual issue as to whether the petitioner has experience of five years and has actually been continuing as headmaster of the institution; (ii) if the petitioners have continued for long as headmaster the direction to pay the arrears would only extend up to three years prior to filing of the writ petition; (iii) we also make it open for the District Basic Education Officer to ensure at the district level that only senior assistant teachers are allowed to officiate in the educational institution, as far as, it is possible. This would eliminate possibility of heart burning on account of junior assistant teachers functioning as officiating headmaster; (iv) requisite exercise in this regard shall be undertaken within a period of two months and the amount in term of above determination shall be calculated and released without any further loss of time."
Learned Standing Counsel for the respondents state that subsequently, a Government Order dated 14.10.2025 was issued which was further modified by another Government Order dated 16/7/2026, whereby a decision was taken to pay the salary to the in-charge headmaster equal to the headmaster.
While arguing the present writ petitions, the counsel for the petitioners draw my attention, to the subsequent judgment of the Supreme Court in the case of Maya Banerjee vs. Union of India, decided on 20.08.2026 wherein, the Supreme Court was confronted with an issue relating to grant of pension and retirement benefits and a plea of limitation was taken on the foundation of the judgment in the case of Tarsem Singh (supra). The Supreme Court considered the entire case law including the earlier judgment of the Supreme Court in the case of S.K. Mastan Bee vs. General Manager, South Central Railway & Anr., (2003) 1 SCC 184 wherein, the Supreme Court had observed in para 6 as under:
"6.We notice that the appellant's husband was working as a Gangman who died while in service. It is on record that the appellant is an illiterate who at that time did not know of her legal right and had no access to any information as to her right to family pension and to enforce her such right. On the death of the husband of the appellant, it was obligatory for her husband's employer viz. the Railways, in this case to have computed the family pension payable to the appellant and offered the same to her without her having to make a claim or without driving her to a litigation. The very denial of her right to family pension as held by the learned Single Judge as well as the Division Bench is an erroneous decision on the part of the Railways and in fact amounting to a violation of the guarantee assured to the appellant under Article 21 of the Constitution. The factum of the appellant's lack of resources to approach the legal forum timely is not disputed by the Railways. The question then arises on facts and circumstances of this case, was the Appellate Bench justified in restricting the past arrears of pension to a period much subsequent to the death of the appellant's husband on which date she had legally become entitled to the grant of pension? In this case as noticed by us hereinabove, the learned Single Judge had rejected the contention of delay put forth by the Railways and taking note of the appellant's right to pension and the denial of the same by the Railways illegally considered it appropriate to grant the pension with retrospective effect from the date on which it became due to her. The Division Bench also while agreeing with the learned Single Judge observed that the delay in approaching the Railways by the appellant for the grant of family pension was not fatal, in spite of the same it restricted the payment of family pension from a date on which the appellant issued a legal notice to the Railways i.e. on 1-4-1992. We think on the facts of this case inasmuch as it was an obligation of the Railways to have computed the family pension and offered the same to the widow of its employee as soon as it became due to her and also in view of the fact that her husband was only a Gangman in the Railways who might not have left behind sufficient resources for the appellant to agitate her rights and also in view of the fact that the appellant is an illiterate, the learned Single Judge, in our opinion, was justified in granting the relief to the appellant from the date from which it became due to her, that is the date of the death of her husband. Consequently, we are of the considered opinion that the Division Bench fell in error in restricting that period to a date subsequent to 1-4-1992."
(emphasis supplied)
The Supreme Court further noticed the judgment of the Supreme Court in the case of Tarsem Singh (Supra) and after noticing the same, was of the view that while passing the judgment in the case of Tarsem Singh, the earlier judgment and the principle laid down in the case of S.K. Mastan Bee (supra) were not placed before the Division Bench which had passed the judgment in the case of Tarsem Singh. As, both the judgments namely S.K. Mastan Bee (supra) and Tarsem Singh (supra) were delivered by the Bench of same strength, the Supreme Court considered the effect of not considering the earlier judgment and held as under:
"20.When the principles concerning the binding value of two conflicting decisions rendered by the Benches of equal strength are settled, as quoted in the above referred judgments, we have to apply the principles in the case in hand to decide whether the appellant would be entitled to family pension from the date it fell due or she is entitled to it from the year 2014 as has been directed by the High Court."
And ultimately, the benefits were granted from the date when the fell due to the appellant before the Hon'ble Supreme Court in terms of the directions given in para 21 which is quoted herein below:-
"21.In our considered view, considering the right of an individual to receive family pension which is held akin to a valuable right and property in her hand and is no longer treated as a bounty, restricting the same from 2014 onwards would not only be arbitrary, but it will amount to inflicting injustice upon a poor widow who was earning livelihood by working as a house maid in the neighbourhood when her husband died in harness. Not only that her husband was dismissed after his death which was impermissible as per the Railway Board's own circular, the appellant's subsequent representation claiming family pension was rejected on the ground of incongruity as to the date of death of her late husband. The appellant had to file a civil suit to obtain a declaration as to the exact date of death of her husband, for which otherwise, a death certificate, a statutory document, had already been issued in her favour. Thus, the appellant was not at fault in laying the delayed challenge to the Railways' refusal to grant family pension to her. In our view, the ratio in S.K. Mastan Bee (supra) has dealt with the specific issue of restricting the past arrears of pension in more appropriate manner and the same having not been considered by the latter Bench of equal strength in Tarsem Singh (supra), the only choice open to us is to rely on S.K. Mastan Bee (supra) to allow the present Appeals."
Learned counsel for the petitioner also places reliance upon the earlier judgment of the Supreme Court in the case of Tarsem Singh, to argue that even in the judgment of Tarsem Singh, there was no restriction placed of three years, the Supreme Court had clarified the law with regard to laches in para 7 as under:
"7.To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition."
In the light of the said, it is argued that once, the judgment of the Supreme Court in the case of Tarsem Singh, has been held to be not applicable by virtue of doctrine of per incuriam by the Supreme Court itself in the case of Maya Banerjee (supra) and secondly because Tarsem Singh also does not restrict the right upto three years in respect of arrears of salary, the directions given by the Division Bench restricting the right of salary for a period of three years, are wholly unjustified and directions should be issued for payment of salary on the post of officiating headmaster, from the date from which they are working and not for a period of three years prior to filing of the writ petition.
Learned Standing Counsel on the other hand, argues that the judgment of the Supreme Court in the case of S.K. Mastan Bee as well as Maya Banerjee, have to be read in the context of non-payment of pension and gratuity, which were held to be property at the hands of the person and thus, the said analogy, should not be applied in the case of petitioners whose claim is for arrears of salary which should be granted only from the date when the grievances were raised. It is further argued that the Division Bench has rightly, restricted the claim for a period of three years in the light of judgment in the case of Tarsem Singh as, the claims were made by the petitioners by filing writ petition, starting point of raising the grievances.
Learned Standing Counsel, very fairly points out that against the judgment passed by the Division Bench in the case of Tripurari Dubey, the State had approached the Supreme Court and the SLP preferred was dismissed, vide order dated 30.05.2025. A review preferred against the said judgment was also dismissed.
Shri Ran Vijay Singh further argues that, the Division Bench directions given are binding on this Court and thus, the same should not be reopened once, the State has already taken a decision to pay the salaries on the basis of judgment of the Division Bench and in terms of the subsequent GOs issued.
In the light of the rival contentions and in view of the subsequent judgment of the Supreme Court in the case of Maya Banerjee, this Court is to consider as to whether, the claim of petitioners for arrears of salary starting from the date on which, the petitioners are working as officiating headmasters and not from a date three years prior to filing of the writ petition, should be granted or not. The analogy of the Division Bench, is based upon the judgment of Tarsem Singh as is evident from the observations made in para 18 of the judgment of the Division Bench as extracted above, no other analogy has been drawn by the Division Bench. Clearly, the judgment of Tarsem Singh, was reconsidered by the Supreme Court in the case of Maya Banerjee and was not accepted on the ground of the same being per incuriam, having not considered the earlier judgment in the case of Mastan Bee. Thus, what turns out is that the directions given in para 18 of the judgment by the Division Bench, based upon Tarsem Singh, cannot now sustain as the Supreme Court in the case of Maya Banerjee itself has held that the judgment in the case of Tarsem Singh, suffers from the vice of per incuriam, having failed to consider the earlier judgment in the case of S.K. Mastan Bee. The Supreme Court has further clarified the rights with regard to interest while awarding interest in the case of Maya Banerjee, the Supreme Court, although had considered and passed the order in the context of rights flowing out of claim of pension and gratuity which are held to be property at the hands of the person,, the analogy with regard to salary and its claim, is also a property at the hand of the person, who has discharged his service as an officiating headmaster, no distinction can be drawn as the salary, pension, and the gratuity are all properties at the hand of the person, who has rendered service, to that extent the submission of the counsel for the respondents lacks merit and is rejected.
The submission of the State counsel with regard to the binding effect of the Division Bench judgment of this Court, it is no doubt that the directions given by the Division Bench are binding on the Single Judge. However, once the foundation based upon which, the directions are given by the Division Bench, stands eroded, it is the judgment of the Supreme Court which becomes binding on the Single Judge and to that extent, the submission of the counsel for the respondents is liable to be rejected and is accordingly rejected.
Thus, while maintaining all the directions given by the Division Bench in the case of Tripurari Dubey except with regard to fixing the period of three years prior to filing of the writ petition, the same shall continue to operate, however all the petitioners would be entitled to salary starting from the date when they have started acting as officiating headmaster till actual payment/ realization. All the other directions given in Special Appeal No. 625 of 2024 shall continue as it is.
The writ petitions stand disposed of.