High Court
Case Details
Court No. - 33 Case :- WRIT - A No. - 8734 of 2022 Petitioner :- Anand Kumar Rai And 3 Others Respondent :- State Of U P And 2 Others Counsel for Petitioner :- Santosh Kr. Singh Paliwal,Sr. Advocate Counsel for Respondent :- C.S.C. Hon'ble Ashutosh Srivastava,J. Heard Sri Santosh Kumar Singh Paliwal, learned counsel for the petitioners, learned Standing Counsel for the State Respondent Nos.1 to 3. The instant writ petition has been filed for quashing of the office order dated 09.03.2022 passed by the State Government. A further prayer has also been made for issuance of a writ of mandamus commanding the respondent to treat the petitioners as exemption from training and entitling the trained pay scale of Assistant Teacher w.e.f. 01.01.2004. A further prayer has also been made for issuance of a writ of mandamus commanding the respondents to sanction arrears of salary to each of the petitioners in trained pay scale from 01.01.2004 till date. The petitioners are working as Assistant Teachers in recognized primary schools run by the Basic Education Department and receiving grant-in-aid from the Social Welfare Department. Initially, the petitioners were appointment as untrained Assistant Teachers. Under the Government Order dated 04.05.2012, the petitioners underwent BTC Training Course through distance mode and completed their training in the year 2016. As per the Government Order dated 09.12.2003, teachers who had completed 5 years of service as untrained Assistant Teachers on 31.12.2003 or who had two years of service left before retirement were sanctioned exemption from training and such Government Order were applicable to the institution receiving grant-in-aid from the Social Welfare Department. The petitioners are claiming benefit of exemption from training and trained pay scale with effect from the date of completion of 5 years length of service as untrained Assistant Teachers. Being aggrieved the petitioners approached
Decision
this Court by filing Writ (A) No.4127 of 2021, which was disposed of vide order dated 12.07.2021, with a direction to the Respondent No.1, to examine the petitioners' claim in light of the Government Order dated 09.12.2003 by passing a reasoned and speaking order. It was further observed in the order that a report would be called from the institution concerned and if it is found that petitioners' claim is covered by the Government Order dated 09.12.2003, an appropriate order would be passed within a period of 4 months. In pursuance of the order passed by the Writ Court, the State Government rejected the claim of the petitioners. A counter affidavit has been filed by learned Standing Counsel and in Para No.4, it has been specifically stated that vide Government Order dated 26.04.2010 issued by the Social Welfare Anubhag-4, Government of U.P., the decision was taken for providing the facilities for exemption from the training to the teachers of primary section attached from the Non- Governmental Aided Madhyamik Vidyalaya by the Basic Shiksha Department with certain terms and conditions provided in Government Order dated 09.12.2003 with immediate effect but after consultation with the Law Department and Finance Department and after due consideration with regard to Government Order dated 26.04.2010 and letter dated 03.06.2010, the Government Order dated 04.05.2012 has been issued and the aforesaid Government Order was cancelled. In the aforesaid Government Order, it is provided that the untrained teachers may be trained within the prescribed as per the provisions of Right to Education Act, 2009, else the appointment may be cancelled if they are not trained within the prescribed period. A rejoinder affidavit has been filed by learned counsel for the petitioner and in Para No.3, the contention of the Standing Counsel has been denied stating that under the Government Orders and the Orders issued by the Social Welfare Department the benefit of grant of exemption from training to such untrained teachers who had completed 5 years length of services stood sanctioned. The petitioners have also been sanctioned such benefit but such benefit has not been sanctioned with effect from the date of completion of 5 years length of service. There does not exist any provisions in the Right to Children to Free & Compulsory Education Act, 2009 which may preclude the petitioners all the benefit of sanctioned of trained status and trained pay scale with effect from the date of completion of 5 years length of service. Having heard the learned counsels for the parties and having perused the record, this Court finds that the petitioners being aggrieved by non- consideration of their claim for exemption from training, approached this Court by filing Writ (A) No.4127 of 2021, wherein following orders were passed on 12.07.2021. “Petitioners have been appointed on different dates between 1983 to 1994 as Assistant Teacher in Primary Institutions run by Samaj Kalyan Vibhag. They ere getting salary as untrained teacher. However, after 08.03.2016 the petitioners are getting salary as a trained teacher. It is contended on the basis of the Government Order dated 09.12.2003 that those teachers who have completed more than 5 years working on or prior to 31.12.2003 would be entitled to exemption from training. It is stated that as petitioners' claim is covered by the aforesaid Governmnt Order their claim is also liable to be considered, accordingly. Reliance is also placed upon an order passed by Principal Secretary on 29.01.2020. Learned Standing Counsel states that petitioners' claim for exemption from training can be examined by the competent authority, at the first instance. In the facts of the present case it would be appropriate to direct the 1st respondent to examine petitioners' claim in light of the Government Order dated 09.12.2003 by passing a reasoned order. A report would be called from the institution concerned and if it is found that petitioners' claim is covered by Government Order dated 09.12.2003 an appropriate order would be passed within a period of 4 month from the date of presentation of a copy of this order. Writ petition is, accordingly, disposed of.” Pursuant thereto, the petitioners filed the representation before the Principal Secretary, Social Welfare Department, which came to be rejected vide impugned order dated 09.03.2022 passed by under Secretary, Social Welfare Department, Government of U.P. on the ground vide Government Order dated 26.04.2010 issued by the Social Welfare Anubhag-4, Government of U.P., the decision was taken for providing the facilities for exemption from training to the teachers of primary section attached from the Non-Governmental Aided Madhyamik Vidyalaya by the Basic Shiksha Department with certain terms and conditions provided in Government Order dated 09.12.2003 with immediate effect but after consultation with the Law Department and Finance Department and after due consideration with regard to Government Order dated 26.04.2020 and letter dated 03.06.2020, the Government Order dated 04.05.2012 has been issued and the aforesaid Government Order was cancelled. In the aforesaid Government Order, it is provided that the untrained teachers may be trained within the prescribed period as per the provisions of Right to Education Act, 2009 else the appointment may be cancelled if they are not trained within prescribed period. According to the Government Order dated 04.05.2012, they are not entitled for exemption from training. It is not feasible to grant exemption from training now as at that time the orders regarding exemption was being issued by Regional Education Director of the concerned region which has been rejected vide Government Order dated 04.05.2021 and is not in effect in present time. In the opinion of the Court, the order impugned cannot be sustained on three counts. Firstly, this Court vide order dated 12.07.2021, directed the respondents to examine the petitioners' claim in light of the Government Order dated 09.12.2003 after calling for a report from the institution as to whether the petitioners' claim is covered by the Government Order dated 09.12.2003 and the said order passed by the Writ Court in Writ (A) No.4127 of 2021 has not been assailed further, thus, the petitioners' claim could not be rejected on the ground that the Government Order dated 09.12.2003 has been superseded by subsequent Government Order. Secondly, when the petitioners' right accrued under the Government Order dated 09.12.2003, the petitioners were entitled for the benefit of the same and it was the duty of the Regional Director of Education of the concerned region, to have passed appropriate orders. Thirdly, this Court finds that similar benefit has been extended to Sri Awadhesh Kumar Pandey, Assistant Teacher vide Office Memorandum dated 29.01.2020 in compliance of the Order dated 02.09.2013 passed by this Court in Writ (A) No.47632 of 2007 (Awadhesh Kumar Pandey Vs. State of U.P. & others) thus the petitioners who are standing on the same pedestal cannot be discriminated with. In view of the above, the writ petition succeeds and is, accordingly, allowed. The office order dated 09.03.2022 issued by the State Government (Annexure No.7 to the writ petition) is quashed. The petitioners are entitled to all consequential benefits. No order as to costs. Order Date :- 19.10.2022 pks Digitally signed by :- PAWAN KUMAR SINGH High Court of Judicature at Allahabad