# Smt. Narayani Yadav v. Nagar Palika Parishad Sikohabad district Firozabad & Ors

- **Citation:** (2020) 1 ILRA 1731
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-26
- **Case number:** Special Appeal No. 1772 of 2010
- **Bench:** Sudhir Agarwal, Virendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-narayani-yadav-v-nagar-palika-parishad-sikohabad-district-firozabad-ors-45055
- **Pages:** 7

## Headnote

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Uttar Pradesh Basic
Education Act, 1972 - Section 9 read with
Rules 1981 - appellant claiming benefit of
end of Academic Session and higher age of
superannuation-School in question was not
established by Board - Section 9 is not
attracted as his appointment was not made
by Board but by EO, NPP,SKB-Rules 1981
will not be applicable as the same were
made available only to such teachers stood
transferred who were employed in Basic
Schools on appointed date i.e. date of
establishment of Board-recognised school
does not come in the purview of Rules 1975
-
Hence,
appellant
has
rightly
been
informed about date of retirement. (Para 5
to 25)

Special Appeal dismissed. (E-6)

List of cases cited: -

## Text

1732 INDIAN LAW REPORTS ALLAHABAD SERIES
to provide the notional service benefits e.g.
benefit of pay scale and retiral benefits
notionally considering the candidature of
the petitioner for promotion to the post of
Joint Secretary w.e.f. the date when his
juniors, if any, have been promoted on the
said post notionally.

44. Liberty is given to the petitioner
to prefer a representation taking all pleas
and grounds enclosing therewith the
copies of relevant documents as well as
certified copy of this order within a period
of three weeks.

45. The opposite parties shall make
compliance of this order with expedition,
preferably within a period of three months
from the date of production of certified
copy of this order.

46. The writ petition is accordingly
allowed.

47. No order as to costs.
----------
(2020)1ILR 1731

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE VIRENDRA KUMAR SRIVASTAVA, J.

Special Appeal No. 1772 of 2010

Smt. Narayani Yadav ...Petitioner
Versus
Nagar Palika Parishad Sikohabad district
Firozabad & Ors. ...Respondents

Counsel for the Petitioner:
Sri H.N. Singh, Sri Rishabh Srivastava

Counsel for the Respondents:
C.S.C., Sahab Tiwari, Sri Satish Mandhyan,
Sri Saurabh Tiwari, Sri Sita Tiwari

A. Allahabad High Court Rules, 1952 -
Chapter VIII Rule 5 & Uttar Pradesh Basic
Education Act, 1972 - Section 9 read with
Rules 1981 - appellant claiming benefit of
end of Academic Session and higher age of
superannuation-School in question was not
established by Board - Section 9 is not
attracted as his appointment was not made
by Board but by EO, NPP,SKB-Rules 1981
will not be applicable as the same were
made available only to such teachers stood
transferred who were employed in Basic
Schools on appointed date i.e. date of
establishment of Board-recognised school
does not come in the purview of Rules 1975
-
Hence,
appellant
has
rightly
been
informed about date of retirement. (Para 5
to 25)

Special Appeal dismissed. (E-6)

List of cases cited: -

1. Smt. Mithlesh Singal Vs. St. of U. P. & Ors. (W. P.
No.46178 of 2009) decided on 03.09.2009

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri H. N. Singh, Senior
Counsel
assisted
by
Sri
Rishabh
Srivastava, learned counsel for appellant
and learned Standing Counsel for Staterespondents.

2. Smt. Narayani Yadav, petitionerappellant
(hereinafter
referred
to
as
"appellant") having failed in getting any
relief before learned Single Judge due to
dismissal of Writ Petiton No.26650 of
2004 vide judgment dated 04.10.2010, has
preferred this intra-Court appeal under
Chapter VIII Rule 5 of Allahabad High
Court Rules, 1952 (hereinafter referred to
as "Rules, 1952). She has prayed for relief
of setting aside aforesaid judgment of
learned Single Judge as also to issue a writ
1 All. Smt. Narayani Yadav Vs. Nagar Palika Parishad Sikohabad, Dist. Firozabad & Ors. 1733
of certiorari and quash retirement notice
dated 26.04.2004 issued by Executive
Officer,
Nagar
Palika
Parishad,
Shikohabad,
District-Firozabad
(hereinafter referred to as "EO, NPP,
SKB").

3. By the aforesaid notice dated
26.04.2004, EO, NPP, SKB has informed
appellant that she is completing age of
superannuation on 31.07.2004, therefore,
would retire on that date and should hand
over charge to Principal of Bal Mandir,
Nagar
Palika
Parishad,
Shikohabad
(hereinafter referred to as "School")
wherein appellant was working as a
Assistant Teacher.

4. Facts in brief giving rise to present
appeal are as under.

5. The School was established, run
and managed by Nagar Palika Parishad,
Shikohabad,
District-Firozabad
(hereinafter referred to as "NPP, SKB")
sometimes prior to 1968 and it was
granted
permanent
recognition
on
18.05.1968 by District
Inspector
of
Schools, Mainpuri (hereinafter referred to
as "DIOS"), since, at that time Shikohabad
was
part
of
District-Mainpuri
and
subsequently, it became part of DistrictFirozabad. School is a Basic Primary
School
(also
called
'Junior
Primary
School') imparting education from Class I
to V.

6. U. P. Legislature enacted U. P.
Basic Education Act, 1972 (hereinafter
referred to as "Act, 1972") to manage,
control and regulate basic education in
State of U. P. It received assent of
Governor
on
17.08.1972
and
was
published in U. P. Gazette (ExtraOrdinary) on 19.08.1972. All schools run
by 'Local Bodies' were transferred under
control of U. P. Basic Education Board
(hereinafter referred to as "Board") and
thereupon School also came within ambit
of Act, 1972 and Rules and Regulations
framed thereunder.

7. The service conditions of teachers
of Basic Primary Schools came to be
governed by U. P. Basic Education
(Teachers)
Service
Rules,
1981
(hereinafter referred to as "Rules, 1981").
Under Rule 29 of Rules, 1981, age of
superannuation was prescribed as 60 years.

8. By Government Order dated
04.02.2004, decision of government was
communicated
to
Director,
Basic
Education,
Lucknow
that
age
of
superannuation of teachers of Primary
Schools run by Board and also aided
Primary Schools is increased to 62 years.
It also provided that such teachers who
have completed age of superannuation in
July 2003, but continuing under benefit of
end of Session, will also get benefit of
increased age of retirement.

9. Appellant's date of birth is
01.08.1944 as per her High School
Certificate
of
1962.
Therefore,
she
completed 60 years age on 31.07.2004 and
62 years on 31.07.2006. She could not
have been retired prior thereto i.e.
31.07.2006.
Further
since
she
was
attaining
age
of
superannuation
on
31.07.2006, therefore, entitled for Session
end benefit and would have continued up
to 30.06.2007, if age of retirement is taken
as 62 years or 30.06.2005, if age of
retirement is taken as 60 years. It is said
that notice dated 26.04.2004, informing
appellant that she would retire on
31.07.2004, is illegal and contrary to
Statute.
1734 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Writ petition was contested by
respondents-1 and 2 by filing a counter
affidavit, sworn by Md. Afaque, Head
Moharrir, NPP, SKB stating that 'School' is not
under control of Board though recognized
under Act, 1972, therefore, appellant is not
governed by Rules, 1981. It further says that
Government Order dated 04.02.2004, firstly is
not applicable to Schools run by Local Bodies
and secondly, being an executive order, unless
Rules are amended, no otherwise claim can be
made. Further appellant earlier filed Writ
Petition No.44014 of 2002 stating that under
Act, 1972, Schools run by Local Bodies,
mostly, have been transferred to Board, but
School in question run by NPP, SKB, which
was recognized in 1962, continued to be
managed and controlled by NPP, SKB,
therefore, it should also be directed to be taken
over by Board and should be governed by
terms, conditions and Rules of Board including
salaries applicable to teachers and staff of
Primary Schools managed by Board. The
above writ petition was disposed of vide
judgment dated 01.03.2004 directing State
Government to take decision on demand of
teachers of Schools run by Local Bodies with
regard to parity in pay scale with teachers of
Primary Schools managed by Board. Pursuant
to said judgment, a representation was made
by teaching and non-teaching staff including
present appellant, copy whereof is filed as
Annexure-4 to counter affidavit. Government
consequently passed order dated 26.10.2004
holding that teachers of Schools managed by
Local Bodies are not entitled to claim parity
with teachers of Primary Schools managed by
Board. Paras 2 and 3 of Government Order
dated 26.10.2004 rejecting claim of appellant
and others is reproduced as under :

^^2- mDr ds vuqdze esa ;kph ds
izR;kosnu fuLrkj.k gsrq fnukad 14-4-2004 dks
,d cSBd vkgwr dh x;h ftlesa v/;{k uxj
ikfydk ifj"kn f'kdksgkckn] fQjkstkckn us
izfrHkkx fd;kA lgk;d f'k{kk funs'kd 1⁄4csfld1⁄2
vkxjk e.My] ls vk[;k izkIr dh x;hA izkIr
vk[;kuqlkj bl fo|ky; dks LFkk;h ekU;rk o"kZ
1968&69 esa iznku dh x;h FkhA ekU;rk izkIr
fo|ky;ksa dks csfld f'k{kk ifj"kn] m0iz0 esa
'kkfey djus dh uhfr ugha gSA m0iz0 csfld
f'k{kk vf/kfu;e 1972 ds v/khu xfBr m0iz0
csfld f'k{kk ifj"kn ds v/khu os gh fo|ky;
fy, x;s tks vf/kfu;e iz[;kfir gksus ds le;
ftyk fo|ky; fujh{kd o mi fo|ky; fujh{kd
}kjk xzkeh.k {ks=ksa ds rFkk blh izdkj uxj
fudk;ksa esa ftyk fo|ky; fujh{kd ,oa f'k{kk
v/kh{kdksa }kjk f'k{kdksa@f'k{k.ksRrj dfeZ;ksa ls
lsok,W fu;af=r gksrh FkhA

3- m0iz0 csfld f'k{kk vf/kfu;e 1972
dh /kkjk 9 ds vUrxZr gh f'k{kk dehZ lEcfU/kr
fudk;ksa ds ek/;e ls osru ik jgs Fks] mudh
lsok,Wa m0iz0 csfld f'k{kk ifj"kn esa LFkkukUrfjr
dj nh x;hA bl vf/kfu;e ds vUrxZr ekU;rk
izkIr fo|ky;ksa dks csfld f'k{kk ifj"kn ds v/khu
ugha fy;k tkrk gSA orZeku esa jkT; ljdkj dh
,slh dksbZ uhfr ugha gSA vr% cky fo|k eafnj
fQjkstkckn ,oa ekU;rk izkIr fo|ky; gksus ds
dkj.k m0iz0 csfld f'k{kk ifj"kn ds v/khu fy,
tkus dk dksbZ vkSfpR; ugha gSA**

"2. In pursuance of the above, a
meeting was called on 14.04.2004 for
disposal of the representation filed by the
petitioner which was attended by the
Chairman of Nagar Palika Parishad,
Shikohabad, Firozabad. A report was
obtained from the Assistant Director of
Education (Basic), Agra Division. As per
the report so obtained, this school was
granted permanent recognition in the year
1968-69. There is no policy to include the
recognized schools in Basic Education
Board, Uttar Pradesh. Only those schools
were included under the Uttar Pradesh
Basic Education Board constituted under
the Uttar Pradesh Basic Education Act,
1972 where the services of teaching/nonteaching staff used to be governed at the
time of enforcement of the Act by the
District Inspector of Schools and Deputy
1 All. Smt. Narayani Yadav Vs. Nagar Palika Parishad Sikohabad, Dist. Firozabad & Ors. 1735
Inspector of Schools in case of rural
areas and, similarly, by the District
Inspector of Schools and Superintendents
of Education in case of municipal bodies.

3. The services of the teaching
staff, who was getting salary through the
concerned bodies well under Section 9 of
the Uttar Pradesh Basic Education, Act,
1972, were transferred to the Uttar Pradesh
Basic Education Board. The recognized
schools under this Act are not taken under
Basic Education Board. At present, there is
no such policy of the State Government.
Hence, there is no justification for taking
Bal Vidya Mandir, Firozabad under the
Uttar Pradesh Basic Education Board as it
being a recognized school."
(emphasis added)
(English translation by Court)

11. Appellant and others, therefore,
are continuing as employees of NPP, SKB
and governed by terms, conditions and
rules applicable to employees of NPP,
SKB. Since there is no provision of giving
advantage of two years extension to the
age of retirement to employees of NPP,
SKB, appellant's claim otherwise cannot
be accepted. Similarly, there is no
provision in NPP, SKB that an employee
may continue even after attaining age of
superannuation with Session benefit, claim
of appellant for continuance till end of
Session, also cannot be accepted.

12. In the rejoinder affidavit filed by
appellant it is stated that Government
Order dated 04.02.2004 is applicable to all
recognized Primary Schools, therefore,
will apply to teaching staff of Schools run
by Local Bodies namely, NPP, SKB also.

13. Learned Single Judge has
accepted contention of respondent that
'School' is controlled and managed by
NPP, SKB, therefore, it is not governed by
Rules applicable to teachers of Primary
School managed by Board. It has also
followed another Single Judge judgment in
Smt. Mithlesh Singal Vs. State of U. P.
and others (Writ Petition No.46178 of
2009) decided on 03.09.2009, hence,
dismissed writ petition.

14. Parties have also filed certain
affidavits before Court to place on record
documents relating to recognition granted to
'School'
by
concerned
Educational
Authorities and other relevant documents,
which we shall discuss at appropriate stage.

15. Certain facts evident from
pleadings as also relevant Statutes and
provisions contained therein, relied by the
parties, it would be appropriate, to place in
a chronological manner to make the things
straight and more explicit :

18.05.1968 - DIOS, Mainpuri
sent letter to Chairman, NPP, SKB
communicating
him
about
grant
of
permanent recognition to Bal Mandir
Monterssary Vidyalaya, Shikohabad i.e.
'School' with a condition that it shall be
shifted in a newly constructed school
building near Nagar Palika Office by
25.06.1968, failing which, recognition
order shall be cancelled.

10.07.1972
-
U.
P.
Basic
Education
Ordinance,
1972
(U.P.
Ordinance
No.14
of
1972)
was
promulgated.

25.07.1972 - Under Section 3 of
U. P. Ordinance No.14 of 1972, U. P.
Basic
Education
Board
was
constituted/established.

19.08.1972
-
U.
P.
Basic
Education Act, 1972 (U. P. Act No.34 of
1972) was enacted and vide Section 20, U.
P. Ordinance No.14 of 1972 was repealed.
1736 INDIAN LAW REPORTS ALLAHABAD SERIES

19.08.1972 - Every teacher,
officer and other employee serving under a
Local Body exclusively in connection with
Basic
Schools,
immediately
before
appointed date, stood transferred to and
became a teacher, officer or other
employee of Board.

19.08.1972 - Vide Section 18 (3)
(b) of Act, 1972, Section 73 of U.P.
Municipalities
Act,
1916
(hereinafter
referred to as Act, 1916) ceased to apply in
relation to 'Basic Schools'.

25.04.1978 -Thereafter, vide U.
P. Act No.10 of 1978, proviso was added
to Section 73 of Act, 1916, which reads as
under :

"Provided that the appointment of a
teacher or Head of an institution shall be
governed by the provisions of the Uttar
Pradesh State Universities Act, 1973, or the
Intermediate Education Act, 1921, as the case
may be." (emphasis added)

02.08.1978 - Petitioner was
appointed as Assistant Teacher by EO,
NPP, SKB.

03.01.1981 - Rules, 1981
were framed and enforced. Section 3
thereof provides extent of application and
reads as under :

"3. Extent of application.-These
rules shall apply to :

(i) All teachers of local bodies
transferred to the Board under Section 9
of the Act ; and

(ii) all teachers employed for the
Basic and Nursery Schools established by
the
Board."
(emphasis added)

21.06.1999 - Vide Section 13 A
of Act, 1972, provisions of Act, 1972 were
given overriding effect over Act, 1916.

21.06.1999 - Vide Section 9-A
of Act, 1972, control of teacher and
properties
of
Basic
Schools
stood
transferred
to
Gram
Panchayat
and
Municipalities within whose territorial
limit, Basic Schools were situated. It reads
as under :

"9-A. Control of teacher and
properties
of
basic
schools.-
(1)
Nothwithstanding anything contained to
the contrary in any other provisions of this
Act,
on
and
from
the
date
of
commencement of the Uttar Pradesh
Basic Education (Amendment) Act, 2000, -

(a) every teacher of the basic
school
serving
under,
the
Board
immediately before such commencement
shall be under the. administrative control
of
the
Gram
Panchayat
or
the
Municipality, as the case may be, within
whose territorial limits the basic school, is
situated;

(b) all buildings, properties and
assets of the Board in respect of a basic
school shall stand transferred to, and vest
in,
the
Gram
Panchayat
or
the
Municipality, as the case may be, within
whose territorial limits the basic school is
situated;

(c) where any building or part
thereof is occupied by a tenant by the
Board for the purpose of a basic school
immediately before such commencement,
the tenancy in respect of such building or
part
thereof
shall,
notwithstanding
anything contained in any contract, lease
or other instrument, stand transferred in
favour of the Gram Panchayat, or the
Municipality, as the case may be;

(d) the Board shall cease to be
the licensee in respect of the building or
part thereof referred to in sub-section (2)
of Section 18-A and the Gram Panchayat
or the Municipality, as the case may be,
1 All. Smt. Narayani Yadav Vs. Nagar Palika Parishad Sikohabad, Dist. Firozabad & Ors. 1737
within
whose
territorial
limits
such
building is situated shall, if it is not
already owner thereof, be deemed to have
become licensee in respect of such
building or part thereof on such terms and
conditions as may be determined by the
State Government.

(2) No Gram Panchayat or
Municipality shall have the power to
transfer by sale, gift, exchange, mortgage,
lease or otherwise any building, property
or assets transferred to, and vested in,
such Gram Panchayat or Municipality, as
the case may be, under sub-section (1)].
(emphasis added)

21.06.1999 - Certain functions
were assigned to Municipalities vide
Section 10-A of Act, 1972, which reads as
under :

"10A.
Functions
of
Municipalities. - Without prejudice to the
powers and functions of Municipalities
under the Uttar Pradesh Municipal
Corporations Act, 1959 or the Uttar
Pradesh Municipalities Act, 1916, as the
case may be, every Municipality shall,
subject to superintendence and control of
the Board or the State Government,
perform all or any of the following
functions, namely :-

(a) to establish, administer,
control and manage basic schools in the
Municipal area;

(b) to take all such necessary
steps as may be considered necessary to
ensure punctuality and attendance of
teachers and other employees of basic
schools;

(c) to prepare schemes for the
development, expansion and improvement
of such basic schools;

(d) to promote and develop basic
education, non-formal education and adult
education in the Municipal area;

(e) to make recommendation for
minor punishment in such manner as
may be prescribed on a teacher or other
employee of a basic school situate within
the
limits
of
the
municipal
area."
(emphasis added)

16. In the present case, appellant is
claiming benefit of Section 9 of Act, 1972
read with Rules, 1981 to claim higher age
of superannuation and benefit of end of
Academic Session.

17. So far as Section 9 of Act, 1972
is concerned, a perusal thereof clearly
shows that only such teachers stood
transferred who were employed in Basic
Schools on appointed date i.e. date of
establishment of Board i.e. 25.07.1972.
Appellant was not at all in employment in
1972. Therefore, Section 9 of Act, 1972 is
not attracted.

18.

Appellant
admittedly
was
appointed on 02.08.1978. His appointment
was not made by Board but by EO, NPP,
SKB. Even proviso to Section 73 of Act,
1916 has no application, since it talks of
U. P. State Universities Act, 1973 or U. P.
Intermediate Education Act, 1921 and not
Act, 1972.

19. Now coming to Rules, 1981, we
find that the same were made applicable,
vide Rule 3 of Act, 1972, to teachers and
lecturers of Local Bodies, who stood
transferred to Board under Section 9 of
Act, 1972 or all teachers employed for
Basic and Nursery schools established by
Board.

20. The School in question was not
established by Board. Hence, Section 9 of
Act, 1972 was not available. Since
appellant
was
appointed
in
1978,
1738 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, by virtue of Rule 3, Rules, 1981,
are not applicable to the case of appellant.

21. Learned counsel for appellant
drew attention of this Court to U. P.
Recognized Basic Schools (Recruitment
and Conditions of Service of Teachers and
Other Conditions) Rules, 1975 (hereinafter
referred to as "Rules, 1975") which came
into force on 01.07.1975 (Except Rule 11
which
was
made
effective
from
20.05.1975) when Rules were published in
U. P. Gazette (Extra-Ordinary). Aforesaid
Rules, 1975 are applicable to every
recognized Schools as provided in Rule 3
and "Recognized School" is defined in
Rule 2 (e) as under :

"2(e).
"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
for imparting education from Class I to
V."
(emphasis added)

22. Definition of "Recognised
School" clearly shows that it is not
applicable to a Junior Basic School which
belongs to or wholly maintained by Board
or any local body. Rules, 1975 are
applicable to other Junior Basic Schools
which are recognised by Board. Infact
Junior Basic School i.e. school imparting
education upto Class V which belong to or
wholly maintained by Board or any local
body are excluded from application of
Rules, 1975.

23. Reliance is also placed on U. P.
Recognised Basic Schools (Junior High
Schools)(Recruitment and Conditions of
Service
of
Teachers)
Rules,
1978
(hereinafter referred to as "Rules, 1978")
which came into force on 13.03.1978 i.e.
the date on which said Rules were
published in U. P. Gazette (ExtraOrdinary). Here also we find that by virtue
of Rule 2 (e), these are applicable only to
'Junior High School' i.e. school imparting
education from Class VI to VIII while
School in question is clearly a Junior Basic
School as it is imparting education from
Class I to V, as is evident from para 2 of
affidavit filed along with stay application
in this appeal, therefore, aforesaid Rules
are also not applicable.

24. In absence of any provision as
relied by appellant, we have no manner of
doubt that appellant having been appointed
in 1978 by E.O., NPP, SKB continued to
be an employee of said local body and age
of retirement, therefore, in absence of any
other provision applicable to appellant,
would be such as were applicable to
employees of NPP, SKB. Hence, appellant
has rightly been informed about date of
retirement on which she was to complete
60 years of age i.e. 31.07.2004 as the
Rules applicable to employees of NPP,
SKB.

25. We, therefore, find no legal or
otherwise flaw or error in the judgment of
learned Single Judge so as to warrant
interference in this appeal

26. Appeal lacks merit. Dismissed
accordingly.
----------
(2020)1ILR 1737

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.01.2020

BEFORE
THE HON'BLE ABDUL MOIN, J.