# Smt. Raj Kishori Kushwaha v. State of U.P. & Ors

- **Citation:** (2024) 5 ILRA 821
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-07
- **Case number:** Writ - A No. 3863 of 2018
- **Bench:** Piyush Agrawal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-raj-kishori-kushwaha-v-state-of-u-p-ors-51998
- **Pages:** 3

## Headnote

A. Service Law - UP Basic Education
Act,
1972
-
UP
Basic
Education
(Teacher)
Service
Rules,
1981
-
Payment
of
salary
-
Petitioner
discharged
the
duty
of
In-charge
Headmistress for more than 29 years,
but no salary of the same was paid -
Mandamus sought - Held, the petitioner
is entitled for higher salary even for adhoc basis on the post of Headmistress.
(Para 7 and 12)

Writ petition allowed. (E-1)

List of Cases cited:

## Text

5 All. Smt. Raj Kishori Kushwaha Vs. State of U.P. & Ors.
821
selection may be so fixed or manipulated as
to entertain some applicants and reject
others, arbitrarily. Hence, in the absence of
a fixed date indicated in the advertisement/
notification
inviting
applications
with
reference
to
which
the
requisite
qualifications should be judged, the only
certain date for the scrutiny of the
qualifications will be the last date for
making the applications.

18. In view of the law laid down by the
Apex Court in the case of Rakesh Kumar
Sharma (supra) and Dipitimayee Parida
(supra), we find that the instant appeal lacks
merit and is hereby dismissed.
----------
(2024) 5 ILRA 821
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.05.2024

BEFORE

THE HON'BLE PIYUSH AGRAWAL, J.

Writ - A No. 3863 of 2018

Smt. Raj Kishori Kushwaha ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Aishwarya Kumar Singh, Anand Kumar
Yadav,
Rajesh
Kumar
Singh,
Rupesh
Sharma

Counsel for the Respondents:
C.S.C., Arun Kumar, Chhaya Gupta

A. Service Law - UP Basic Education
Act,
1972
-
UP
Basic
Education
(Teacher)
Service
Rules,
1981
-
Payment
of
salary
-
Petitioner
discharged
the
duty
of
In-charge
Headmistress for more than 29 years,
but no salary of the same was paid -
Mandamus sought - Held, the petitioner
is entitled for higher salary even for adhoc basis on the post of Headmistress.
(Para 7 and 12)

Writ petition allowed. (E-1)

List of Cases cited:

1. Dr. Jai Prakash Narayan Singh Vs St. of U.P.;
2014 (3) SCC 1644

2. Smt. P. Grover Vs St. of Hary. & anr.; AIR 1983
SC 1060

3. Secy.- Cum-Chief Engineer, Chandigarh Vs
Hari Om Sharma & ors.; AIR 1998 SC 2909

4. St. of Punj. & anr. Vs Dharam Pal; (2017) 9
SCC 395

(Delivered by Hon'ble Piyush Agrawal, J.)

1. Heard Mr. C.B. Yadav, learned
Senior Counsel for the petitioner and Ms.
Chhaya Gupta, learned counsel for the
respondents no.2 to 5 and learned Standing
Counsel for the State-respondents.

2. By means of this writ petition, the
petitioner has made the following prayer:-

"(i) Issue a writ, order or
direction in the nature of mandamus
directing the respondents to provide the
salary to the petitioner to the post of Head
Mistress w.e.f. 17.02.1988 of the college in
question namely Zila Pachayat Kanya
Uchchatar Madhyamik Vidyalaya Mauaima
Allahabad, with all consequential benefits,
forthwith.

(ii) .....

(iii) ...."

3. Brief facts of the case are that the
Zila Pachayat Kanya Uchchatar Madhyamik
Vidyalaya situated at Mauaima, Allahabad
is a recognized institution under the
Provision of Uttar Pradesh Basic Education
822 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, 1972 (U.P. Act No.34/17) and U.P.
Basic Education (Teacher) Service Rules,
1981. The petitioner was appointed as an
Assistant Teacher in pursuance of the
appointment letter dated 27.09.1982 issued
by the competent authority. Thereafter, the
petitioner joined her services on 01.10.1982
and since then, she was discharging her
services without any break or complaint.
Since on 25.01.1988, one Madhu Rani
Srivastava, who was discharging her duties
as
permanent
Headmistress,
expired.
Thereafter, the petitioner was discharging
her duties as in-charge Headmaster from
15.02.1988 and since then, the petitioner
was discharging her duties as Headmistress.
Thereafter, the petitioner got superannuated
on 31.07.2017, but the payment has not been
made to the petitioner for the post of
Headmistress. Hence, the present writ
petition.

4. Sri C.B. Yadav, learned Senior
Counsel appearing for the petitioner has
submitted that since 1988 to till 2017, the
petitioner discharged her duties diligently as
Officiating Headmistress, which has not
been denied by the respondents. He has
further submitted that there is neither any
complaint against the petitioner nor any
material has been brought on record to show
that the petitioner did not possess due
qualification
for
being
appointed
as
Headmistress, but all the more, salary for the
post of Headmistress has not been paid to
the petitioner. He next submitted that the
petitioner was only paid salary for the post
of Assistant Teacher instead of for the post
of Headmistress. He prays for allowing the
present writ petition and issuance of
mandamus.

5. Per contra, learned Standing
Counsel has submitted that the petitioner
was not duly appointed as Headmistress,
therefore, the salary for the post of
Headmistress cannot be disbursed to her. He
has further submitted that the petitioner was
duty bound to discharge her duties as
Headmistress till absence of any regular
appointed
Headmaster/Headmistress,
therefore, the petitioner was rightly paid the
salary for the post of Assistant Teacher. He
prays for dismissal of this writ petition.

6. After hearing the parties, the Court
has perused the records.

7. Admittedly, it is not in dispute that
the petitioner was appointed on the post of
Assistant Teacher and thereafter, the post of
Headmaster fell vacant on 25.01.1988 on
account of death of One Madhu Rani
Srivastava. Thereafter, from 17.02.1988, the
petitioner was discharging her duties as
Headmistress without any break, compliant
or interruption. In the counter affidavit, it
has specifically been accepted that the
petitioner was discharging her services as
in-charge Headmistress. It is not the the case
of the respondents that the petitioner does
not possess the required qualification to be
appointed as Headmistress in the institution
in question, therefore, the petitioner cannot
be permitted to suffer from any inaction of
the respondents for not appointing regular
Headmaster. On the one hand, the petitioner
was discharged her duties continuously as
Headmistress without pay for the said post,
on the other hand, she was only paid salary
of the post of Assistant Teacher. It is not in
dispute that the petitioner discharged her
services as Headmistress in the institution in
question for more than 29 years.

8. This Court in the case of Dr. Jai
Prakash Narayan Singh Vs. State of U.P.,
(Civil Misc Writ Petition No 23627 of
2014), reported in 2014 (3) SCC 1644, the
Full Bench of this Court, after considering
5 All. Gorakh Singh Vs. State of U.P. & Ors.
823
the various judgments, has held that while
discharging as Officiating Principal, the
Principal would be entitled for salary of the
said post. The relevant paragraph no.57-A of
the said judgment is quoted as below:-

"57 ......

(i) ......

(ii)
An
officiating
principal
appointed under the Statutes of the University,
which are pari materia to the provisions of
Statute 10-B of the First Statutes would be
entitled to claim the payment of salary in the
regular grade of principal for the period
during which he or she has worked until a
regularly selected candidate has been
appointed and has assumed charge of the
office."

9. The Hon'ble Apex Court in the case
of Smt. P. Grover Vs State of Haryana and
Anr, AIR 1983 Supreme Court 1060, has held
that the petitioner was discharging her duties
as Basic Education Officer on an acting basis,
and therefore, she is entitled for the salary of
such higher post.

10. Similarly, the Hon'ble Apex Court in
the case of Secy.- Cum-Chief Engineer,
Chandigarh Vs. Hari Om Sharma & Ors.,
AIR 1998 Supreme Court 2909 has held that
if a person is promoted to the higher post or
put to officiate on that post, or stop-gap
arrangement is made to place him on higher
post, entitle for higher salary.

11. The Hon'ble Apex Court in the case
of State of Punjab and Anr. Vs. Dharam Pal,
(2017) 9 SCC 395, after considering the above
referred two judgments, has held that the
petitioner is entitled to the benefit of pay-scale
for higher officiating post.

12. In view of the facts as stated above
as well as law down by the Full Bench of
this Court and various judgments passed by
the Hon'ble Apex Court, the petitioner is
entitled for higher salary even for ad-hoc
basis on the post of Headmistress.

13. Accordingly, the writ petition is
allowed.

14. A mandamus is issued in favour of
the petitioner for payment of arrears of
salary along with all consequential benefits
with effect from 17.02.1988 till date, she
discharged her duties as Headmistress in the
institution in question, within a period of
one month from the date of production of
certified copy of this order before the
concerned respondent.
----------
(2024) 5 ILRA 823
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 12955 of 2023

Gorakh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sandeep Maniji Bakhshi

Counsel for the Respondents:
CSC, Vijay Kumar Dubey

A. Service Law - UP Nagar Palika Non
Centralized Services Retirement Benefits
Regulations, 1984 - Reg. 2(m) - Post
retiral benefits - Qualifying service -
Reckoning of services rendered as daily
wage employee claimed - Permissibility -
Held, the period of service rendered by the
petitioner as a daily-wager and in the nonpensionable establishment, followed by