Surendra Sharma vs State of U.P. and 3 others

(Per: Mahesh Chandra Tripathi, J.)

Heard Shri J.P. Singh, the learned counsel for the appellant-petitioner and Shri J.N. Maurya, learned Chief Standing Counsel assisted by Shri Fuzail Ahmad Ansari, the learned Standing Counsel for the State-respondents.

The instant intra-court appeal is preferred to quash the judgment and order dated 29.4.2013 passed by Hon'ble Single Judge in Civil Misc. Writ Petition-A No.23422 of 2013 (Surendra Sharma vs. State of U.P. and 3 others) as well as order dated 11.4.2013 passed by Respondent No.3 – District Basic Education Officer, Azamgarh and a direction be issued to respondents to ensure that appellant is paid his arrears of salary from State Exchequer from the date his salary was stopped.

The petitioner was appointed as an Assistant Teacher in the Primary Section of Smt. Ram Daiyee Balika Junior High School, Dariya Dayalpur, Azamgarh (hereinafter referred to as the Institution) on 01.07.1977 and has been working in the institution since then. The institution was initially recognized as a Primary School by an order dated 30.03.1974 and was subsequently granted recognition as a Junior High School with effect from 01.07.1977 by order dated 14.03.1978. In the year 1980, the institution was brought under the grant-in-aid scheme. The Committee of Management submitted the names of its teachers and employees for payment of salary from the State Exchequer. By order dated 03.11.1980, the District Basic Education Officer approved the petitioner's appointment and included his name in the approved list for payment of salary. The petitioner was paid salary from the State Exchequer until October, 1981, whereafter payment of salary was stopped.

One Smt. Jagdamba Srivastava, a similarly situated teacher, filed Civil Misc. Writ Petition No.10389 of 1991 (Smt. Jagdamba Srivastava and another vs. State of U.P. and others), which was allowed on 15.10.1993 directing payment of salary. The Special Leave Petition filed by the State against the said judgment was dismissed. Another Assistant Teacher of the same institution, namely Smt. Gayatri Rai, who had also been appointed on 01.07.1977, filed Writ Petition No.22154 of 1988 (Smt. Gayatri Rai vs. State of U.P. and others), which was allowed on 08.03.1996 directing payment of salary. Pursuant thereto, she has been receiving salary from the State Exchequer.

The petitioner thereafter approached the District Basic Education Officer for release of his salary. As no decision was taken, he along with another teacher filed Writ Petition No.33545 of 1997 (Smt. Ram Daiyee Devi and another vs. State of U.P. and others), which was disposed of on 22.07.1998 with a direction to the District Basic Education Officer to decide the representations of the petitioners therein. Thereafter, by order dated 08.10.1998, the District Basic Education Officer directed the Accounts Officer to examine the records. The Accounts Officer, by order dated 31.10.1998, granted financial approval for payment of salary to the petitioner. However, though the salary bill was initially processed, payment was not released. Subsequently, by order dated 12.04.1999, the District Basic Education Officer rejected the petitioner's claim for salary.

The petitioner challenged the order dated 12.04.1999 by filing Writ Petition No.21720 of 1999 [Smt. Ram Daiyee Devi and another vs. State of U.P. and others], in which, an interim order dated 31.10.2001 was passed directing payment of current salary to the petitioner in the same manner as being paid to Smt. Gayatri Rai. The writ petition was, however, dismissed by judgment dated 28.08.2003. Aggrieved thereby, the petitioner preferred Special Appeal No.1978 of 2009 [Smt. Ram Daiyee Devi and another vs. State of U.P. and others]. The Division Bench, by judgment dated 23.11.2012, allowed the appeal, set aside the judgment of the learned Single Judge and remitted the matter to the District Basic Education Officer, Azamgarh for fresh consideration. After affording an opportunity of hearing to the petitioner, the District Basic Education Officer passed the order dated 11.04.2013 rejecting the petitioner's claim for payment of salary. The said order dated 11.04.2013 has been challenged in the aforesaid writ petition i.e. Writ-A No.23422 of 2013 (Surendra Sharma vs. State of U.P. and 3 others) with the following prayer:

The aforesaid writ petition (Writ-A No.23422 of 2013) was filed by the petitioner claiming that he was entitled to receive salary after his institution was brought under the grant-in-aid scheme because he had been appointed against a sanctioned post and his appointment had been approved by the District Basic Education Officer on 03.11.1980. It was also claimed that another teacher of the same institution, Smt. Gayatri Rai, had been granted salary through court orders, and therefore denial of the same benefit to him was discriminatory.

Learned Single Judge noted that the petitioner had earlier filed a writ petition (No.21720 of 1999), which was dismissed on 28.08.2003, but in a special appeal (No.1978 of 2009), the Division Bench vide order dated 23.11.2012 directed the District Basic Education Officer to pass a fresh reasoned order, observing that mere non-fulfilment of the prescribed standard under the Government Order was not sufficient to deny salary. After considering the submissions, the learned Single Judge examined Clause 10 of the Government Order dated 03.05.1982, under which the institution was brought on the grant-in-aid list. The learned Single Judge held that Clause 10 specifically restricted payment of salary under the grant-in-aid scheme only to the teachers and employees working in Classes VI to VIII, and expressly excluded the teachers and employees working in the primary section (Classes I to V). Since the petitioner was admittedly appointed as a teacher in the primary section, he was not entitled to salary under the grant-in-aid scheme.

Learned Single Judge further held that the petitioner had never challenged the validity of Clause 10 of the Government Order, and after more than 31 years such a challenge could not be permitted. The benefit granted to Smt. Gayatri Rai could not be treated as a precedent because it had been granted through judicial intervention without consideration of Clause 10. No other Government order extending grant-in-aid benefits to primary teachers was produced before the Court. Accordingly, the learned Single Judge held that the petitioner was not entitled to payment of salary under the Government Order dated 03.05.1982 and dismissed the writ petition on 29.04.2013. Aggrieved with the said order, the instant intra-court appeal has been preferred.

Shri J.P. Singh, learned counsel for the appellant-petitioner, vehemently submits that the learned Single Judge has erred in dismissing the writ petition by placing reliance upon Clause 10 of the Circular dated 03.05.1982. He submits that the appellant's appointment had already been approved by the District Basic Education Officer on 03.11.1980 and, pursuant thereto, he was paid salary from the State Exchequer. It is contended that the Circular dated 03.05.1982 was issued subsequently and has no retrospective operation. He further submits that neither the Circular nor any statutory provision provides that salary already sanctioned to teachers of the Primary Section would stand discontinued. He argues that the authorities as well as the learned Single Judge have read Clause 10 of the Circular in isolation while ignoring the fact that the institution had already been brought under the grant-in-aid scheme in the year 1980 and the appellant had been granted approval before issuance of the Circular. Learned counsel further submits that Clause 14 of the same Circular provides protection to teachers appointed prior to the enforcement of the U.P. Recognized Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules, 1978^{11.The 1978 Rules}, but the said provision has not been considered.

Learned counsel further submits that the learned Single Judge failed to appreciate that another Assistant Teacher of the same institution, namely Smt. Gayatri Rai, who was appointed on the same date and whose appointment had also been approved, has been receiving salary from the State Exchequer pursuant to the orders passed by this Court. He pressed that It is submitted that the claim of Smt. Gayatri Rai was based upon the judgment dated 15.10.1993, wherein this Court held that the provisions of the Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978^{22.The 1978 Act} (U.P. Act No.6 of 1979) apply to institutions having both Primary and Junior High School sections and that teachers of the Primary Section are also entitled to payment of salary. The said judgment was affirmed by the Hon'ble Supreme Court upon dismissal of the Special Leave Petition filed by the State. He further submitted that despite the matter having been remanded by the Division Bench for fresh consideration, the District Basic Education Officer rejected the appellant's claim solely on the basis of Clause 10 of the Circular dated 03.05.1982, without properly considering the earlier approval granted to the appellant, the provisions of the U.P. Act No.6 of 1979 (The 1978 Act), or the binding judicial pronouncements governing the issue.

Learned counsel for the appellant-petitioner has placed heavy reliance upon the judgment of the Hon'ble Supreme Court in State of U.P. v. Pawan Kumar Divedi.^{33.(2014) 9 SCC 692} He submits that the very question involved in the present appeal - whether a teacher working in the primary section (Classes I to V) of an institution that also runs Classes VI to VIII is entitled to payment of salary under Section 10 of the 1978 Act - stands conclusively answered by the Constitution Bench in favour of such teachers. He submits that the Supreme Court, having classified Junior High Schools into three categories, held that for an institution running Classes I to VIII as a single unit (the exact nature of the institution in question), the applicability of Section 10 of the 1978 Act "does not create any difficulty," and that even in the more contested category of institutions where the primary section is added later to an already-recognised Senior Basic School, primary-section teachers are equally entitled to salary under the said provision. Learned counsel submits that Clause 10 of the Circular dated 03.05.1982, being a mere executive instruction, cannot be read to restrict a statutory liability that has since been authoritatively construed by the Supreme Court, and that the impugned order and judgment, having proceeded solely on the strength of Clause 10 without the benefit of this subsequent pronouncement, cannot be sustained.

Learned counsel has further placed reliance upon the judgment of this Court in Singasan Sharma v. State of U.P. and 3 Others^{44.Special Appeal No. 530 of 2025, decided on 17.12.2025, reported in 2026 (2) ESC 583 (All)(DB)} in support of the appellant's alternative submission that a teacher whose appointment has been duly approved by the competent authority cannot be denied salary merely on account of subsequent administrative reconsideration or technical objections. He submits that the Division Bench, following the judgment of the Hon'ble Supreme Court in Radhey Shyam Yadav v. State of U.P.^{55.(2024) 11 SCC 770}, held that the State cannot take advantage of its own lapse, or that of its officers, in granting approval and thereafter deny salary and service benefits to an employee who is not himself at fault. Learned counsel submits that the appellant's appointment was approved by the District Basic Education Officer as far back as 03.11.1980, and that this approval has never been disturbed or withdrawn by any competent authority.

Per contra, Shri J.N. Maurya, learned Chief Standing Counsel along with Shri Fuzail Ahmad Ansari, learned Standing Counsel appearing for the State-respondents, supports the judgment of the learned Single Judge as well as the order dated 11.04.2013 passed by the District Basic Education Officer. He submits that although the appellant was initially paid salary after the institution was brought under the grant-in-aid scheme, the payment was rightly discontinued from October, 1981 as the appellant was working in the Primary Section attached to the Junior High School and was not entitled to receive salary from the State Exchequer under the provisions governing payment of salaries. He submits that the appellant's claim was considered on several occasions. His representation was rejected by the District Basic Education Officer on 12.04.1999, whereafter Writ Petition No.21720 of 1999 was dismissed by the learned Single Judge on 28.08.2003. Although the Division Bench, in Special Appeal No.1978 of 2009, remitted the matter for fresh consideration, the District Basic Education Officer, after reconsidering the matter in terms of the remand order, has again rejected the appellant's claim by order dated 11.04.2013.

Learned Standing Counsel further submits that the District Basic Education Officer rightly relied upon Clause 10 of the Circular dated 03.05.1982, which specifically provides that salary under the 1978 Act is payable only to teachers and employees working in Classes VI to VIII and not to those working in the attached Primary Section comprising Classes I to V. He next submitted that the learned Single Judge, while dismissing Writ Petition No.23422 of 2013 by judgment dated 29.04.2013, also held that the institution was governed by Clause 10 of the said Circular and that the payment of salary to Smt. Gayatri Rai could not be treated as a precedent in the absence of any grant-in-aid order extending such benefit to teachers of the Primary Section. Learned Standing Counsel also places reliance upon the amendments introduced by the Uttar Pradesh Basic Education (Amendment) Ordinance, 2017 and the corresponding amendment in the 1978 Act, whereby "Junior Basic School" and "Junior High School" have been separately defined. He submits that the amendments reinforce the distinction between the two institutions and support the stand taken by the State. He, therefore, submits that the present special appeal lacks merit and is liable to be dismissed.

Before dealing with the rival contentions, it is necessary to notice the statutory provision under which the claim is made. Section 10 of the 1978 Act reads as follows:

The word "institution" is defined in Section 2(e) of the 1978 Act as "a recognized Junior High School for the time being receiving maintenance grant from the State Government." At the relevant time, the expression "Junior High School" itself stood undefined in the 1978 Act. It is this gap that led to the dispute decided by the Hon'ble Supreme Court in the case of Pawan Kumar Divedi (supra).

The Constitution Bench in Pawan Kumar Divedi (supra) considered the same issue that arises in this appeal. The question was whether a teacher working in the primary section (Classes I to V) of a school that also runs Classes VI to VIII is entitled to salary under Section 10 of the 1978 Act, or whether this benefit is available only to teachers of Classes VI to VIII. In paragraph 42, the Supreme Court divided such schools into three categories:

(emphasis supplied)

The Supreme Court held that there was no difficulty in applying Section 10 of the 1978 Act to the first two categories of schools. It observed that where a school has Classes I to VIII, or where such a school is later upgraded, all teachers are covered by Section 10. The Court further explained that if a Primary School (Classes I to V) is added to a recognised and aided Junior High School (Classes VI to VIII), both sections become one integrated Basic School. Therefore, the expression "Junior High School" in the 1978 Act should not be given a narrow meaning. It refers to a Basic School imparting education up to Class VIII, and not merely to Classes VI to VIII. For ready reference, paras - 42.1 and 42.2 are reproduced hereinbelow:

(emphasis supplied)

The Hon'ble Supreme Court also decided the issue relating to the third category of schools, where the primary section was added after the Junior High School had already received recognition and grant-in-aid. The Court held that teachers of the primary section are also entitled to the benefit of Section 10 of the 1978 Act. It observed that both the Primary and Junior High School sections are governed by the same Board of Basic Education under the 1972 Act. The Hon'ble Supreme Court further held that denying salary to primary teachers in such schools would result in unequal treatment and could make the 1978 Act unconstitutional. Therefore, the Court affirmed its earlier decision in Vinod Sharma vs. Director of Education (Basic) U.P.^{66.(1998) 3 SCC 404} and held that the expression "Junior High School" includes Classes I to V even where those classes were added later after obtaining separate recognition. For ready reference, para-44 of Pawan Kumar Divedi (supra) is reproduced hereinbelow:

(emphasis supplied)

The above principles fully apply to the present case. Smt. Ram Daiyee Balika Junior High School, Dariya Dayalpur, Azamgarh, was recognized as a Primary School on 30.03.1974 and was recognized as a Junior High School with effect from 01.07.1977. Since then, it has been functioning as one institution running Classes I to VIII under the same management. It clearly falls within the first category identified in Pawan Kumar Divedi (supra), where the Supreme Court held that Section 10 applies without any difficulty. Therefore, the appellant, who worked as a teacher in the primary section of this institution, is also a teacher of an institution covered by Section 10 of the 1978 Act.

This question has already been decided in respect of the same institution. By judgment dated 15.10.1993 in Civil Misc. Writ Petition No. 10389 of 1991 (Smt. Jagdamba Srivastava & Another), a learned Single Judge of this Court rejected the State's argument that only teachers of Classes VI to VIII are entitled to salary under the 1978 Act. The Court held that since the institution runs both the Primary and Junior High School sections, the 1978 Act applies to all classes, and teachers of both sections are entitled to salary under the 1978 Act. The Court held as under:

The judgment dated 15.10.1993 became final because the Special Leave Petition filed by the State against it was dismissed. Thus, even before the Constitution Bench decision in Pawan Kumar Divedi (supra), this Court had already taken the same view in respect of this very institution.

However, the order dated 11.04.2013 passed by the District Basic Education Officer, Azamgarh, and the judgment dated 29.04.2013 passed by the learned Single Judge are based entirely on Clause 10 of the Circular dated 03.05.1982 issued by the Director of Education (Basic), U.P. Clause 10 provides that salary under the Payment of Salaries Act is payable only to teachers and other employees working in Classes VI to VIII, and that the benefit is not available to teachers and employees working in Classes I to V. The Clause 10 reads as under:

Clause 10 provides that, under the 1978 Act, salary is payable only to teachers and other employees working in Classes VI to VIII of the schools listed in the Annexure. It further states that the 1978 Act will not apply to teachers and employees working in the attached Primary Section (Classes I to V), and that no grant will be payable to them under any other order. However, this clause is only an executive instruction issued by the Director of Education for implementing the grant-in-aid scheme of 1982. It cannot limit or take away a right created by Section 10 of the 1978 Act. Once the Supreme Court has interpreted the scope of Section 10, that interpretation is binding. An executive circular cannot override or narrow the meaning of a statutory provision as explained by the Supreme Court. Therefore, the learned Single Judge and the District Basic Education Officer erred in relying only on Clause 10 to hold that teachers of the Primary Section were not entitled to salary. They failed to consider Section 10 of the 1978 Act in the light of the law laid down by Pawan Kumar Divedi (supra). For this reason, their finding cannot be sustained.

It is also necessary to clarify another point on which the learned Single Judge appears to have been mistaken. The learned Single Judge held that the appellant could not challenge Clause 10 of the Circular dated 03.05.1982 after a gap of 31 years. This reasoning would have been correct if the appellant had challenged the validity of Clause 10 itself. However, that is not the appellant's case. The appellant has consistently maintained that he is entitled to salary under Section 10 of the 1978 Act, irrespective of Clause 10. This issue depends on the correct interpretation of Section 10, which was authoritatively settled by the Constitution Bench in 2014. Therefore, there is no question of delay or limitation in relying upon the later decision of the Supreme Court interpreting the existing law.

It is also important to notice that the law was later amended. By the Uttar Pradesh Basic Education (Amendment) Ordinance, 2017, Section 2 of the U.P. Basic Education Act, 1972 was changed to define a "Junior Basic School" as a school teaching Classes I to V and a "Junior High School" as a school teaching Classes VI to VIII. At the same time, clause (ee) was added to Section 2 of the 1978 Act, which defines a "Junior High School" as an institution imparting education from Classes VI to VIII. Section 2 provides as follows:

This amendment, introduced by U.P. Act No. 3 of 2018, gives statutory effect to the narrower meaning of "Junior High School" which the Constitution Bench in Pawan Kumar Divedi (supra) had earlier rejected. However, this is a substantive change in the law and therefore applies only from the date it came into force. It does not affect the appellant's claim for salary for the period before the amendment, because that claim is governed by the law laid down in Pawan Kumar Divedi (supra).

This view is supported by the recent decision of the Hon'ble Supreme Court in Directorate of Revenue Intelligence v. Raj Kumar Arora and Others^{77.2025 INSC 498 : (2026) 2 SCC 401}. In that case, the Court considered whether a later Supreme Court judgment, which overruled an earlier one, would apply to cases that were already pending when the later judgment was delivered. The Court held that, as a general rule, Supreme Court judgments interpreting a statute apply retrospectively. Such a judgment does not create a new law but only declares what the law has always meant. Therefore, even cases filed before the later judgment are governed by the law as clarified by that judgment, and not by the earlier view that has been overruled. The Court also clarified that this rule applies unless it expressly states that its decision will operate only prospectively.

The Constitution Bench judgment in Pawan Kumar Divedi (supra) contains no such direction limiting its operation to future cases. Accordingly, the general rule of retrospective application, as explained in Raj Kumar Arora (supra), fully applies. The interpretation placed by the Constitution Bench on Section 10 of the 1978 Act must therefore be treated as declaring the true meaning of that provision from the very beginning and governs the present appeal, which has remained pending throughout.

This principle, however, has an important limitation. It does not reopen cases that had already become final before the law was clarified. The Supreme Court expressly recognised this limitation in Raj Kumar Arora (supra), holding that judgments which had already attained finality under the earlier view would remain undisturbed. The same principle is reflected in the Explanation to Order XLVII Rule 1 of the Code of Civil Procedure, 1908, and in the consistent decisions of the Supreme Court that a subsequent change in law by a coordinate or larger Bench is not, by itself, a ground to review a judgment that has already become final, as held in Sanjay Kumar Agarwal v. State Tax Officer^{88.(2024) 2 SCC 362}, and State (NCT of Delhi) v. K.L. Rathi Steels Ltd.^{99.(2024) 7 SCC 315} This limitation would equally have applied to the appellant if his own claim had become final before 2014, a point discussed further below.

Learned counsel for the appellant also relied on the judgment of Singasan Sharma (supra). That case, however, did not deal with the interpretation of Section 10 of the 1978 Act. It was related to the denial of retirement benefits to teachers whose appointments had been approved many years earlier, on the basis of a later administrative inquiry, despite an earlier court decision that had become final. Relying on Radhey Shyam Yadav v. State of U.P.^{1010.(2024) 11 SCC 770}, the Division Bench held that once a teacher's appointment has been approved and the teacher has served for many years, salary and service benefits cannot be denied merely because of procedural irregularities or mistakes committed by the management or the authorities. A teacher who is not at fault cannot be made to suffer for such lapses. The Division Bench held in para-10, that:

(emphasis supplied)

Although the issue decided in Singasan Sharma (supra) was different, the principle laid down in that case supports the appellant to the extent that his appointment was approved by the District Basic Education Officer, Azamgarh on 03.11.1980, and that approval has never been cancelled or withdrawn. However, unlike Singasan Sharma (supra), there is no specific pleading in the present case to show that the appellant actually continued to teach in the institution throughout the entire period for which salary is claimed. This is a separate question of fact. It is different from the legal question of entitlement under Section 10 and is considered separately below.

It is also necessary to note that the record does not show the appellant's employment status after the dismissal of his writ petition on 29.04.2013. It is not clear whether he continued in service, retired on attaining the age of superannuation, or whether his service ended for any other reason. This appeal has been decided only on the question of his entitlement to salary under Section 10 of the 1978 Act for the period during which he actually taught in the institution. Since no issue regarding his employment status after 29.04.2013 has been raised or argued, this Court expresses no opinion on that question. If, during the fresh consideration, it is found that the appellant's service ended after 29.04.2013, whether by resignation, removal, retirement, or otherwise, he shall be entitled to salary only for the period during which he actually remained in service. No direction for payment of salary beyond that date shall follow from this judgment. However, if the appellant claims that his service was discontinued illegally, he shall be free to seek any remedy available to him in law. This judgment does not decide that issue.

It is important to understand the mistake in the present case. The order dated 11.04.2013 passed by the District Basic Education Officer and the judgment dated 29.04.2013 passed by the learned Single Judge were delivered before the Constitution Bench of the Supreme Court decided Pawan Kumar Divedi (supra). Therefore, neither of them had the benefit of that decision. The mistake was not that they incorrectly applied the law as it was then understood. The correct legal position was clarified only later by the Constitution Bench.

When the impugned orders were passed, the question whether a teacher of the Primary Section in a school having Classes I to VIII was entitled to salary under Section 10 of the 1978 Act had not been finally settled. The issue was pending before a larger Bench of the Supreme Court because the earlier decision in Vinod Sharma (supra) had been doubted. In these circumstances, the District Basic Education Officer and the learned Single Judge cannot be blamed for relying on Clause 10 of the Circular dated 03.05.1982, as that was the legal position understood at that time. This judgment should not be taken as criticism of their approach.

However, while deciding this appeal, this Court must apply the law as it stands today. It is a settled principle that when the Supreme Court interprets a statutory provision, it explains what the law has always meant. It does not create a new law from the date of its judgment. Therefore, the decision in Pawan Kumar Divedi (supra) applies to the present case, and this Court is bound to follow it.

This appeal has been pending since 1999. During this period, the law relating to the appellant's claim was finally settled by the Supreme Court while the case was still pending. Therefore, the appeal must be decided according to the law declared by the Supreme Court, and not according to the legal position that existed when the impugned orders were passed.

The instant case is not a case where the dispute stood finally decided before the Constitution Bench delivered its judgment. We express no opinion on such cases. In the present case, the appellant's claim never attained finality. The Division Bench, by its order dated 23.11.2012 in Special Appeal No. 1978 of 2009, remanded the matter for fresh consideration whereafter the respondent no.3 passed the impugned order on 11.04.2013. The same was challenged in writ petition which was decided on 29.04.2013, which has been assailed in the present special appeal. The lis was pending before this court since 2013. Therefore the law laid down in Pawan Kumar Divedi (supra) fully applies to the present case.

For the reasons discussed above, we hold as follows:

In view of the aforesaid, the judgment and order dated 29.04.2013 passed by the learned Single Judge in Civil Misc. Writ Petition-A No.23422 of 2013, as well as the order dated 11.04.2013 passed by respondent No. 3, the District Basic Education Officer, Azamgarh, are hereby set aside. The special appeal is accordingly disposed of with the following directions: