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PETITIONER: VINOD SHARMA & OTHERS

       Vs.

RESPONDENT: DIRECTOR OF EDUCTION (BASIC) U.P. & OTHERS

DATE OF JUDGMENT:       20/03/1998

BENCH: S.C. AGRAWAL, K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Misra. J.      Special leave is granted.      This appeal  is directed against the judgment and order of the  High  Court  dated  7th  October,  1996  in  a  writ petition, wherein direction was issued to the respondents to pay the salary of the appellants under the Payment of Salary Act from  29th August,  1991. The grievance is, the impugned order has shortened the relief from what was envisaged under the judgment and order dated 29th August, 1991. The claim is they should  be paid  the arrears  of their  salary not from 29th August, 1991 but from 1st July, 1975.      It is  necessary to  refer to certain essential ******* to appreciate  the controversy  in this case. The 59 Gorakha Training  Center,  Junior  High  School  Deradun  Cant,  was astablished in  they hear 1952 for providing eduction to the children of  Ex-Service men, serving Military personnels and officers as  well as civilians and the Education Department. The U.P. Government gave recognition to the said institution with effect  from 9th  April, 19059.  The case  is that they were appointed  as Assistant  Teachers being duly qualified. On 9th  April,  1970,  the  District  Inspector  of  Schools Dehradun gave  permission  to  the  management  to  run  the classes from  class 1 to VIII. The concerned respondents did not bring  the appellants  under the  Payment of  Salary Act though they  are entitled  since the  year 1975. Reliance is placed under  Rule 10 of the U.P. Recongnised Basic Schools, Recruitment and  Conditions of service of Teachers and other employees, Rules  1975 (hereinafter  referred  to  as  ‘1975 Rules’), which is quoted hereunder:-           "10. Salary  of teachers.  - A      recognised school  shall  undertake      to pay  with effect  from  July  1,      1975, to every teacher and employee      the same  scale  of  pay,  dearness      allowance and  additional  dearness      allowance  as   are  paid   to  the      teachers and employees of the Board      possessing  similar  qualification.      P[ay  will   be  disbursed  through

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    cheque."      The appellants  filed Civil Miscellaneous Writ Petition No. 24478  of 1988  seeking the  direction  for  payment  of salary to  the appellants  under the  Payment of Salary Act. The High  Court allowed  the  said  Writ  Petition  on  29th August, 1991,  and directed  the respondents  to  bring  the appellants under the provisions of Payment of Salary Act and pay their  salary accordingly  under rit.  Against this, the State of U.P., who is respondent in the present case filed a Special Leave  Petition  (C)  No.  827  of  1993  which  was dismissed by  this Court  on 10th  May, 1993  and  a  review petition against  the same  which was also dismissed on 17th September, 1993. The grievance expressed now is since in the said Writ  Petition there  was  no  prayer  for  payment  of arrears of salary which they are claiming now from 1st July, 1975, hence  no specific  order was passed. The case is that the respondents  in spite  of that are not paying arrears of salary with  effect from 1st July, 1975. The appellants made several representations but with no avail. When this was not redressed, the  appellants filed  another Writ  Petition No. 24284 of 1995 for a specific direction to pay the arrears of salary as  aforesaid since 1st July, 1975. That was disposed of by  the High  Court on  7th October,  1996, which  is the impugned order  with the  direction to pay the salary of the appellants with effect from 29th August, 1991.      So far  the claim of the appellants to receive payments since 1st  July, 1975,  we do not find any indication either in any  of the aforesaid two orders passed by the High Court or under  any of  the relevant  Rules. It  is true  that the aforesaid Rules  1975 came  into force  on 1st  July,  1975. Under this Rule junior basic school is defined; Section 2 (b) :           "Junior Basic  School means an      institution other than High Schools      or Intermediate  Colleges imparting      Education up to V class." Under Section 2 (e) Recognised Schools is also defined:           "Recognised School  means  any      Junior Basic  School, not  being an      institution belonging  to or wholly      maintained  by  the  Board  or  any      local body, recognised by the Board      before the  commencement  of  these      rules  imparting   education   from      Classes I to V."      Thus, the  aforesaid  rules  defines,  a  Junior  Basic School as imparting education upto Class V and indicate what recognised school  means. Rule 10 casts an obligation to pay the salary  to a teacher on the recognised school and not on the State  Government. The  State Government is obliged only under the Payment of Salary Act. Hence, even though a school may be  ‘recognised’ but  that by itself does not create any right in the appellants to receive their salary under it.      The Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment  and Condition of Service of Teachers) Rules 1978  (hereinafter referred  to as  ‘1978 Rules’). The Rule deals  with Junior  High School of the recognised Basic School Section 2(e) define ‘Junior High School’ :           "Junior High  School means  an      Institution other  than High School      or Intermediate  College  imparting      education to  boys or girls or both      from class  VI to  VII (inclusive)"      We find  the aforesaid  1975 and  1978 Rules  have been framed under Section 19(1) of the Uttar Pradesh Eduction Act

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1972. Section  2 (b)  defines ‘Basic  Eduction’ as imparting education upto  class eight. It is under this Act, Rule 2(b) of 1975  Rules defines  ‘Junior Basic  School’  as  imputing education upto  Class V  and Rule 2(e) of 1978 Rules defines ‘Junior High School’ as imparting education from Class VI to VII (Inclusive). In this background another Act was enforced viz. the  Uttar  Pradesh  Junior  High  School  (Payment  of Salaries of Teachers and other Employees) Act 1978. Argument for the  State is  that this  Payment of  Salary Act  is not applicable to  the primary  Section as  this applies only to the  Junior  High  School  viz.  Classes  VI  and  VII.  Two questions arise,  firstly whether  the State  has any  right raise such  an issue  after matter  became  final  inter  se between the  parties through  the aforesaid  decision of the High  Court  on  29th  August,  1991  and  secondly  whether appellants’  claim  for  payment  of  salary  from  1975  is sustainable, if not, from what date?      Considering first  the later  appellants’ claim  it  is necessary to  reproduce relevant  portion of the decision of the High Court in 1991 as aforesaid :           "I have  heard learned counsel      for the  petitioners  as  also  the      learned   standing   counsel.   The      petitioners  may  be  teaching  the      Primary  classes   but   they   are      working in the institution which is      junior High  School  and  they  are      teachers  of   the  a  junior  High      School which  runs the classes from      1 to  8. All  the classes which are      being   though    in   the   school      constitute one  unit and  they  are      not separated Unit. The respondents      have also  not said  that they  are      separate unit.  In fact  Annexure 2      appended to the writ petition makes      it abundantly clear that the school      is one  unit in  which education is      imparted  to  primary  classes  and      junior classes  by the teachers who      are   working    under   the    one      management  and  one  Head  Master.      That  being   so  that  petitioners      cannot be  deprived of  the benefit      of payment  of salary  Act and they      are entitled  to be  paid under the      provision of the said Act.           The petitoners are entitled to      be  paid  their  salary  under  the      provisions of the Payment of Salary      Act as  they are  teachers  of  the      junior High  School and  the  order      contained   in   Annexure-2   lands      support to  their  contention  that      they  are   also  entitled  to  get      salary  in   accordance  with   the      provision  of   payment  of  Salary      Act."      However, the  aforesaid Junior  High School  Payment of Salaries Act, 1978 came into force with effect from 1st May, 1979 by  virtue of  the notification  issued  under  section 1(3). This Act was brought in to  remove frequent complaints that salary  of teachers and non-teaching employees of aided non-Government Junior  High Schools  are  not  disbursed  in time, resulting  hardships to  its employees.  The aforesaid

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judgment dated 29th August, 1991 refers to this Act. For the respondent State  of U.P.  contention is  that this  is  not applicable to  the primary sections, namely, from Class I to Class V  but to  Classes VI  to VII.  The High Court finally directed the  respondents to  bring the appellants under the said Act,  meaning thereby  under the  1978 Act, and pay the salary according  to the  provisions of  the said  Act.  The operative portion  of  the  said  order  is  a  also  quoted hereunder :           "The respondents  are directed      by  a   mandamus   to   bring   the      petitioners under the provisions of      payment of salary Act and pay their      salary according  to the provisions      of the said Act.      It is  not that  appellants are  not  entitled  to  the payment of  any salary. They are, but prior to bringing them under the said Act this obligation is only on the Recognised School under the aforesaid Rule 10 of the 1975 Rules. But by the said  High Court  judgment the respondents were bound to bring them  under the  Payment of  Salary Act  and pay their salaries accordingly.  This cannot  be denied  by the State. But in spite of this nothing was done in this regard.      Coming to the State’s objection, the submission is that they are  only entitled for payment of salary under the said Act  since   11th  February,  1993,  as  on  that  date  the Government issued  such orders.  The objection  has no force and cannot be permitted to be raised in the present case. As aforesaid,  inter   se  between   the  appellants   and  the respondents including  State the  matter has become final by the aforesaid  High Court  judgment dated 29th August, 1991. Against the  aforesaid judgment,  addimitteldy, SLP  of  the State was  rejected even  Review Petition was rejected. This apart even  otherwise the  State  has  not  come  in  appeal against the impugned judgment dated 7th October, 1996, hence cannot challenge the same in this appeal.      Returning to  the impugned  order, we  find, inspite of several  representations,   that  the  respondents  did  not respond inspite  of the  earlier  direction,  hence  it  was ordered to pay them under the Payment of Salary Act at least since the  earlier High  Court judgment and order dated 29th August, 1991.      Since appellants  were not  satisfied by  the  impugned order, as  they claimed  their salaries  since 1975 when the aforesaid 1975  Rule came into effect. The contention is the spirit of  the earlier High Court order was to pay from that date. This  was as  Junior High School teachers were getting since then,  hence primary section teachers cannot be denied this right  being in the same school. In other words, to pay from the  same date  as was  paid to  the Junior High School teachers. We  find force  in this submission. When grievance of the appellants was accepted in the first Writ Petition to being them  in parity  with the Junior High School teachers, the payment  form 1991  cannot be construed to be correction the facts  of  this  case.  But  considering  the  claim  of appellants, they  could in  no case  be entitled  to be paid period to the Payment of Salary Act, 1978. Hence appellants’ claim since 1975 cannot be accepted.      Considering the  direction issued by the High Court, in its first  judgment, where  clear direction  is to pay these appellants under  the Payment  of Salary  Act as in the same institution another set of teachers (Junior High School) are being paid  under it and the institution being one unit, the same cannot  be  denied  to  the  teachers  in  the  primary sections. In  other words,  to pay  them also under the same

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Act from  the date  Junior High School teachers were paid in this institution. As we have held above even if argument for the State may have any merit in law, cannot be sustained, as it has become final inter se between the parties. It is also brought to  our notice  that one  of such  teacher Km. Harsh Uniyal similar to the appellants, though did not join in the first writ  petition but  on the  basis of  decision of that case (1991),  filed a  writ petition  No.11644 of 1993 which was allowed by the High Court on 8.12.93 with a direction to pay the  salary since  the payment  of Salary  Act was  made applicable to that institution. We were informed accordingly payment was made to her by the respondents.      For the  aforesaid reasons, this appeal is allowed with a direction  to pay  the appellant  from the  day Payment of Salary Act, 1978 (aforesaid) was made applicable in the said institution, i.e., from the date Junior High School teachers of that  institution were paid salary under the 1978 Act. If any payment  of salary  already made  and  received  by  the appellants for  this period,  the same  be adjusted  and the balance amount,  if any,  be paid within two months from the date certified  copy of  this  order  is  filed  before  the concerned authority.  This is  also without prejudice of the concerned authority  if the  recongnished  institution  (the present  institution)   has  not  paid  any  salary  to  the appellants which  they were  obliged  after  enforcement  of payment of  salary to  take such  recourse as permissible in law. Cost on the parties.