# / v. State of U.P. and others

- **Citation:** Special Appeal No. 20 of 2009
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-04-29
- **Case number:** Special Appeal No. 20 of 2009
- **Bench:** Shiva Kirti Singh Chief . Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-state-of-u-p-and-others-42854
- **Pages:** 3

## Headnote

C.S.C., Sri H.K. Shukla
Sri K. Shahi, Sri P.N. Tripathi

U.P. High Schools and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers and other employees) Act
1971- Primary Schools attached with
junior high school or High School-by G.O.
21.06.1973-393
Primary
Sections
attached
Higher
Secondary
Schoolbrought under payment of salaries Actinstitution upgraded to High School on
10.03.1980-admittedly not covered by
the G.O. dated 21.06.1973.-held-can not
claim grant in aid to those attached
primary Sections.

Held: Para-5
So far as the claim of the petitioners is
concerned
even
if
the
order
of
attachment is accepted to be genuine
and by a competent authority, the
primary section was attached to a Junior
High School only till 10th March, 1980
when the School was upgraded to High
School. Clearly the primary section to
which petitioners belonged cannot be
covered by the policy decision of the
State Government because on 21st June,
1973 the primary section was not
attached with the Higher Secondary
School. There is no dispute that for
primary sections of Junior High Schools
there was a different scheme and such
Institutions were covered by the Uttar
Pradesh Junior High Schools (Payment of
Salaries
of
Teachers
and
other
Employees) Act, 1978.

Case Law discussed:
Special Leave Petition (Civil) No. 649 of 1995

## Text

1 All Chandrabhan Awasthi and others Vs. State of U.P. and others
437
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.04.2013

BEFORE
THE HON'BLE SHIVA KIRTI SINGH CHIEF
JUSTICE.
THE HON'BLE DILIP GUPTA, J.

Special Appeal No. 20 of 2009

Chandrabhan Awasthi and others

 Appellants/Petitioners
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Ashok Khare, Sri Irshad Ali
Sri Rajendra Kumar Pandey
Sri Rajiv Kumar Singh
Sri Veer Singh

Counsel for the Respondents:
C.S.C., Sri H.K. Shukla
Sri K. Shahi, Sri P.N. Tripathi

U.P. High Schools and Intermediate
Colleges
(Payment
of
Salaries
of
Teachers and other employees) Act
1971- Primary Schools attached with
junior high school or High School-by G.O.
21.06.1973-393
Primary
Sections
attached
Higher
Secondary
Schoolbrought under payment of salaries Actinstitution upgraded to High School on
10.03.1980-admittedly not covered by
the G.O. dated 21.06.1973.-held-can not
claim grant in aid to those attached
primary Sections.

Held: Para-5
So far as the claim of the petitioners is
concerned
even
if
the
order
of
attachment is accepted to be genuine
and by a competent authority, the
primary section was attached to a Junior
High School only till 10th March, 1980
when the School was upgraded to High
School. Clearly the primary section to
which petitioners belonged cannot be
covered by the policy decision of the
State Government because on 21st June,
1973 the primary section was not
attached with the Higher Secondary
School. There is no dispute that for
primary sections of Junior High Schools
there was a different scheme and such
Institutions were covered by the Uttar
Pradesh Junior High Schools (Payment of
Salaries
of
Teachers
and
other
Employees) Act, 1978.

Case Law discussed:
Special Leave Petition (Civil) No. 649 of 1995

(Delivered by Hon'ble Shiva Kirti Singh,
Chief Justice)

1. Heard learned counsel for the
petitioners, learned counsel for the State
and Sri K.Shahi, learned counsel appears
for the Basic Education Officer, district
Gorakhpur.

2. This appeal is directed against the
judgment and order of a learned Single
Judge
dated
27th
November,
2008
whereby writ petition preferred by the
fifteen appellants bearing Civil Misc. Writ
Petition No.38988 of 1999 was dismissed
with costs of Rs.1,50,000/- with each of
the petitioners held liable for payment of
Rs.10,000/-.

3. Although challenge made
in the writ petition was to an
order passed by the Secretary
(Basic Education) on 28th July,
1999 contained in Annexure-17
to the writ petition, the issue
calling for determination was
basically a question of law as to
whether
the
petitioners
were
also entitled for payment of
salary in accordance with the
provisions of the Uttar Pradesh
High
Schools
&
Intermediate
Colleges (Payment of Salaries of
438 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Teachers & Other Employees)
Act, 1971 (hereinafter referred
to as the 'Act of 1971') in view
of policy decision of the State
Government dated 6th September, 1989
contained in Annexure-1.

4. There is no dispute on facts that
the petitioners claim to be teachers of a
primary section of a Junior High School
till the said Junior High School became a
High School in the year 1980. The
Secretary as well as the learned Single
Judge have doubted the genuineness of
order whereby District Basic Education
Officer granted recognition to the Primary
Section in question as attached to the
Junior High School on 12th February,
1973. The power of the District Basic
Education Officer to grant recognition to
such attachment and the genuineness of
the very order of attachment may be
issues of facts and may require going into
evidence but the issue of law does not
require going into such details. A perusal
of the Government decision dated 6th
September, 1989 clearly shows that by
way of policy, in the light of various
Government Orders including the one
dated 21st June, 1973, the Government
decided that only in respect of 393
primary sections attached to Higher
Secondary Schools payment of salary to
the teachers of primary sections shall be
made under the provisions of the Act of
1971 although that Act applies strictly
only to payment of salary of teachers of
Intermediate and High Schools. A reading
of the order dated 6th September, 1989
and Government Order dated 21st June,
1973 leaves no manner of doubt that the
cut-off-date was 21st June, 1973 and only
such primary schools which were attached
with Higher Secondary Schools till that
date were held eligible and included in the
list of 393 Schools for grant of benefit in
the matter of payment of salary under the
Act of 1971.

5. So far as the claim of the
petitioners is concerned even if the order
of attachment is accepted to be genuine
and by a competent authority, the primary
section was attached to a Junior High
School only till 10th March, 1980 when
the School was upgraded to High School.
Clearly the primary section to which
petitioners belonged cannot be covered by
the
policy
decision
of
the
State
Government because on 21st June, 1973
the primary section was not attached with
the Higher Secondary School. There is no
dispute that for primary sections of Junior
High Schools there was a different
scheme
and
such
Institutions
were
covered by the Uttar Pradesh Junior High
Schools (Payment of Salaries of Teachers
and other Employees) Act, 1978.

6. So far as the legal issue discussed
above is concerned, a judgment of learned
Single Judge, on which petitioners have
placed reliance, is available on record as
Annexure No.18. That judgment of the
learned Single Judge dated 7th January,
1993 passed in Civil Misc. Writ Petition
No.6841 of 1993 only made certain
observations and remanded the matter for
consideration
by
the
authorities.
According to submissions of learned
counsel for the Basic Education Officer,
that judgment is under challenge through
a Review Petition which is still pending
and direction of that judgment still
remains unimplemented. On the other
hand, on behalf of the respondents,
reliance has been placed upon a judgment
of the Supreme Court dated August 1,
1997 passed in Special Leave Petition
(Civil) No.649 of 1995 (State of U.P. &
1 All Chandrabhan Awasthi and others Vs. State of U.P. and others
439
Others Vs. Committee of Management of
Hansraj Lal Intermediate College). The
Supreme Court decided whether a Junior
High School having primary sections if
approved as a High School after June,
1973 can claim that the primary sections
should be recognized within the grant-inaid scheme of the State Government of
Uttar Pradesh. The Supreme Court held
that the scheme was applicable only to the
High Schools which had primary sections
attached to it prior to June, 1973. The
respondent-Intermediate College of that
case was recognized as a High School
only in August, 1973 and since that date
was after June, 1973, the Supreme Court
held that the said School cannot claim
benefit of the scheme for grant-in-aid for
its primary sections.

7. In view of such clear judgment of
the Supreme Court, we have no option but
to dismiss this Special Appeal. It is,
accordingly, dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 05.04.2013.

BEFORE
THE HON'BLE DEVI PRASAD SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI(II),J.

Service Bench No. 75 of 2011

State of U.P.

...Petitioner
Versus
Kanhaiya Lal

 ...Respondent

Counsel for the Petitioner:
C.S.C.

Counsel for the Respondent:
Sri Kunchan Kumar Pandey
Sri R.K. Upadhayaya

Constitution Of India, Art.-226- Service
Law-arrears of Salary-entitlement-Notional
promotion with retrospective effect givenwhether entitled for salary for the period
without discharge of duty on promotional
post-held-'No'
Held: Para-12
In any case, the Constitution Bench
judgment of Hon'ble Supreme Court in
the case of Paluru Ramkrishnaiah(supra)
and other judgments (supra) of Hon'ble
Supreme Court is a binding precedent
where Hon'ble Supreme Court held that
where
promotion
is
granted
from
retrospective date, then the salary for
the period the petitioner actually had not
worked in the promotional post shall not
be paid. Accordingly, the tribunal seems
to have failed to exercise jurisdiction
vested in it. Thus, the impugned order
seems
to
suffer
from
substantial
illegality.

Case Law discussed:
1996 SCC(L&S)633; (2006) 10 SCC 145;
(1989)2 SCC 541; AIR 1993 SC 1740;
[2005(23) LCD 173

(Delivered by Hon'ble Devi Prasad Singh, J)

1. Heard learned Standing Counsel
for the petitioner and Mr. R.K. Upadhyay,
learned counsel for the respondents.

2. Present writ petition has been
preferred against the judgment and order
dated 10.9.2009, passed by State Public
Service Tribunal, Lucknow in Claim
Petition No.952 of 2003.

3.

While
adjudicating
the
promotional controversy, a decision was
taken to grant promotion to the claimant
respondent from 31.1.2000 on the post of
Senior Finance and Accounts Officer.
However, it is provided by the order dated
25.10.2012 that the claimant respondent
shall not be entitled for arrears of salary in
the promotional avenue. The order was
impugned before the tribunal and the