Parishad & Anr Vs. Smt. Sugna Devi & Ors  Insc 639 (12 December 2003)
Babu & Ruma Pal. Rajendra Babu, J. :
the Respondent No 1- Smt. Sugna Devi could be considered as a teacher employed
by the Petitioner No 1 - Basic Shiksha Parishad, Allahabad (UP) is the short
question for consideration in this matter.
No 1 maintained the case that she was appointed as an Assistant Teacher in Kanya
Pathshala, Mallawan in district Gonda on 22/03/1966 by the then President of
District Board Gonda. Subsequently she was transferred to Paraspur. Later she
was transferred back to Mallawan. Consequent to her prolonged illness she took
leave between July 1970 and 14/05/1971 and
thereafter between July 1971 and 29/12/1971. When she returned on 30/12/1971 the Headmistress told her that she was terminated
from services. But she was not served with any termination orders. She was told
by the Headmistress to approach the Zila Parishad to seek for a transfer.
Accordingly she placed representation before the Chairman, Zila Parishad for
transferring her to another school. Several follow up reminders for this
representation was sent. By the time vide UP Act No 34/1927 the Basic Education
was taken over by the Basic Shiksha Parishad from Zila Parishad. Thereafter
Respondent No 1 approached District Basic Education Officer, Secretary Basic Shiksha
Parishad and even the Minister and made several representations. Thereafter she
filed a Claim Petition before the UP Public Services Tribunal.
Parishad maintained the stand that that she was never been their employee and
since she could not produce any documents that could authenticate the factum of
her service the case has to be rejected as a concocted one.
Tribunal found that since she could not prove that the President of District
Board Gonda validly appointed her or she was working as a teacher the Claim
Petition was rejected both on grounds of prolonged delay and on merits.
preferred a Writ Petition challenging the Tribunal's order before the High
Court. Along with the Writ Petition she annexed all the documents that were
relied upon by her before the Tribunal.
time she also filed an application before the Basic Shiksha Adhikari to furnish
her copies of all the relevant documents such as salary / pay bills, vouchers
etc. Though the Basic Shiksha Adhikari had directed to furnish all the
documents required by her, the Record In-Charge refused to give it to her under
one pretext or another. At the outset the High Court noted that these documents
were not made available either to the Tribunal or to the High Court.
the High Court relied upon the documents filed by Respondent No 1 such as - the
document that proves the payment of Rs. 80 as arrears, her transfer orders,
joining reports, letter of Adhyaksha calling upon her to present her
testimonials etc. and found that she was working as a teacher. High Court also
noted that that the Zila Parishad has not disputed Sugna Devi's case nor was
there any valid reason on record that shows that she was not working as a
pertinent finding of the High Court is that once the name of a staff was found
in the list, the Basic Education Board was under legal obligation to give
reasons or explanation as to under what circumstances or for what reasons the
services of that staff was not treated to have been transferred under the
mandatory provisions of Section 9(1) of the Act. This was not complied in the
case of Respondent No 1. Hence her service was considered as transferred to the
Basic Shiksha Parishad. For these reasons the High Court set aside the findings
of the Learned Tribunal and held that she had continued to be in service. Due
to the fact that the salary was recurring every month the cause of action was continuing.
Therefore the finding of the Tribunal on account of bar of limitation was also
held to be erroneous.
all these facts the High Court ruled that Sugna Devi is entitled to salary for
three preceding years before the date of superannuation to be computed on the
basis of revised pay scales as existing at the time of her retirement. By this
finding the Writ petition was allowed. This judgment is impugned before us.
only point for consideration is whether the Respondent No. 1 was in service or
not on the relevant date. The Tribunal only on the basis that she was not able
to produce the appointment letter ruled that she was never in service. On the
other hand the High Court relied on documents like transfer orders and joining
reports found that she was validly in service. There is also positive evidence
to the effect that she was paid arrears during the relevant period. All this
goes to show that the President of District Board appointed her as a teacher
and she was working as one.
the finding of the Tribunal is difficult to subscribe. We uphold the view
adopted by the High Court and hold that Respondent No 1 was appointed as a
teacher. By virtue of the enactment of UP Basic Education Act, 1972 her service
was transferred to the Basic Shiksha Parishad. Since her services were never
terminated, why her name was missing form the list of transferred employees has
to be explained by the Appellant No 1. In contrast, Appellant No 1 strongly
maintained the stand that she was never in service. In the facts and
circumstances of this case we find it difficult to accept this contention.
which, the case of the Respondent No 1 that the competent authority duly
appointed her as an assistant teacher and she was prevented from joining, as a teacher
after leave has to be accepted. Once no order of termination or dismissal is
produced, her service has to be treated as stood transferred to the Basic
Education Board by operation of law. In that event she has to be treated as
continuing in service and salary was accruing every month that accorded her a
continuing cause of action. Therefore the question of limitation also won't
arise in this case. In this context the view adopted by the High Court is
perfectly justified. We don't propose to interfere.
view of the High Court that Respondent No 1 is entitled to compensation
equivalent to the salary for the three preceding years before the date of
superannuation on the basis of revised pay is also quite reasonable.
we dismiss this Petition. The High Court order shall be given effect to within
a period of three months from today.