बेसिक शिक्षा परिषद बनने से पहले के कर्मचारी अवकाश नकदीकरण के हकदार : इलाहाबाद हाईकोर्ट
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 25 of 2016
Appellant :- The U.P. Basic Shiksha Parishad And 4 Ors.
Respondent :- Dharnidhar Dubey
Counsel for Appellant :- Bhanu Pratap Singh
Counsel for Respondent :- Subhash Chandra Tiwari
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
This special appeal is directed against the judgment of the learned Single Judge dated 25 August 2014. Prior to the enactment of the Uttar Pradesh Basic Education Act, 1972 (UP Act No.34 of 1972)1 and the constitution of the Board of Basic Education, all basic institutions from class I to V and class VI to VIII in the State were under the control of the local bodies. After the constitution of the Board of Basic Education upon the enactment of U.P. Act No. 34 of 1972, all such institutions and their employees were transferred to the Board under the provisions of Section 9. Since the date of transfer, the service conditions of the teaching and other employees of basic institutions are governed by the statutory Rules applicable to the employees of the Board.
The respondent was initially appointed on 13 July 1965 in the city area of Mirzapur and his services were transferred to the Basic Shiksha Parishad on 30 July 1981. He attained the age of superannuation on 30 June 2007 after completing service of 41 years 11 months and 17 days. In his writ petition, the respondent sought to claim the benefit of the facility of leave encashment on the date of his superannuation. This claim of the respondent was founded on a judgment of the Public Service Tribunal dated 15 May 1999 in a case titled as Rajeshwar Prasad Singhal vs. Secretary, Basic Shiksha Parishad2. The case before the Public Service Tribunal also dealt with the claim of an employee who was earlier an employee with a local body and had been transferred to and absorbed in the Basic Shiksha Parishad on 1 August 1972. The Tribunal upheld the claim of leave encashment by its judgment. The judgment of the Tribunal was questioned in a special appeal before the Division Bench of this Court. The Division Bench by its judgment dated 22 July 2004 dismissed the writ petition on the ground that the Basic Shiksha Parishad had failed to establish Rules disentitling the employees of the Parishad to leave encashment. However, the Court also observed that the judgment should not be interpreted to mean a direction that in all such cases the employees would be entitled to leave encashment in the absence of Rules. The judgment of the Division Bench was challenged before the Supreme Court. However, the Civil Appeal3 was dismissed in default on 10 March 2011.
Now, it is in this background that the issue which falls for determination in the special appeal needs to be taken up.
The learned Single Judge while allowing the writ petition has relied upon the course of litigation culminating in the judgment of the Supreme Court and, it would appear on the principle of parity held that the respondents were also entitled to the leave encashment, there being no other impediment.
When the Uttar Pradesh Basic Education Act, 1972 was enacted, Section 9 provided for the transfer of employees of the erstwhile local bodies who were engaged exclusively in connection with basic schools. Section 9 provides as follows:
"9. Transfer of employees. - (1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection in basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are (altered by the rules made by the State Government in that behalf) :
Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board :
Provided further that the Board may employ any such teacher, officer or other employee in the discharge of such functions under this Act as it may think proper and every such teacher, officer or other employee shall discharge those functions accordingly.
(2) Nothing in sub-section (1) shall apply to any teacher, officer or other employee, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice, his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body, which shall be as follows -
(a) in the case of a permanent employee, a sum equivalent to his salary (including all allowances) for a period of three months or for the remaining period of his service, whichever is less;
(b) in the case of a temporary employee, a sum equivalent to his salary (including all allowances) for one month or for the remaining period of his service, whichever is less.
(3) Notwithstanding anything in sub-section (1), any person referred to therein, who becomes an employee of the Board shall be liable to be transferred from the school or from the local area in which he was employed immediately before the appointed day to any other school or institution belonging to Board or, as the case may be, to any other local area at the same remuneration and on the same other terms and conditions of service as governed him immediately before such transfer [until such tenure, remuneration and other terms and conditions are altered by the rules referred to in sub-section (1)] :
Provided that no teacher of a basic school (which before the appointed day belonged to a local body) shall be transferred to a basic school belonging to any other local body except with his consent.
(4) If any question arises whether the services of any person stand transferred to the Board under sub-section (1) or as to the remuneration and other terms and conditions of service of such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final.
(5) Any provident fund maintained by any local body for the employees referred to in sub-section (1) along with all contributions of such employees as well as of the local body which ought to have been but have not been deposited therein before the appointed day, shall be transferred by the local body to the Board, which shall hold it in trust for the employees concerned in accordance with the terms and conditions governing such fund.
(6) The transfer of services of any employee to the Board under sub-section (1) shall not entitle any such employee to any compensation and no such claim shall be entertained by any Court, Tribunal or Authority."
As a result of Section 9, teachers, officers and employees engaged by local bodies exclusively in connection with the basic schools before the appointed date (1 August 1972) became employees of the Board to whom their services were transferred. Section 9 provides that they would hold office by the same tenure, on the same remuneration and upon the same terms and conditions of service as would have been held when the Board had not been constituted. Moreover, the same conditions of service were to govern unless and until the tenure, remuneration or conditions were altered by Rules made by the State Government in that behalf. In exercise of the powers conferred by Section 19 of the Act, the State Government formulated the Uttar Pradesh Basic Education (Teachers) Service Rules, 19814.
The entire case of the Parishad in the special appeal before this Court is that the Rules of 1981 are silent in regard to leave encashment and hence, since a specific provision was not introduced for allowing leave encashment, the facility of leave encashment which was otherwise available to the employees of local bodies would cease upon their services being transferred to the Board.
The next limb of the submission is that in the present case, it appears that a decision was communicated by the Parishad on 2 December 1994 in pursuance of a Government Order dated 5 May 1992 by which it was decided that no leave encashment would be granted to the transferred employees.
In our view, neither the circular of the Parishad dated 2 December 1994 nor for that matter, the communication of the State Government dated 5 May 1992 would amount to a Rule within the meaning of Section 9. Section 9 of the Act specifically protects the tenure, remuneration and other terms and conditions of service of the transferred employees until they are altered by Rules made by the State Government in that behalf. The silence of the Rules of 1981 cannot be construed as an alteration of an entitlement which existed to leave encashment prior to the transfer of the employees on the appointed date to the Basic Shiksha Parishad. In fact, the record also contains a specific representation made on 24 February 2006 by the Basic Shiksha Parishad to the Special Secretary in the State Government in the Education Department referring to the fact that the facility of leave encashment was available to the employees of the erstwhile local bodies. It was followed by a further communication dated 29 May 2006 of the Director of Basic Education to the Joint Secretary in the Education Department once again reiterating the same position. The issue is whether the entitlement to leave encashment which would be protected by Section 9 of the Act in the case of transferred employees was altered by any Rule. The answer must be in the negative.
The State has not been able to place before this Court any such Rule altering the entitlement. The communication of the State Government dated 5 May 1992 read with the circular of the Board dated 2 December 1994 cannot be regarded as a Rule within the meaning of Section 9. Hence, we see no merit in the contention that silence of the rules amounted to an alteration in the service conditions of transferred employees. Moreover, the submission of the learned Standing Counsel that these communications were not challenged before the learned Single Judge or before the Public Service Tribunal would not advance the case of the appellant. The simple issue is as to whether this would constitute a Rule within the meaning of Section 9. Neither of them purport to be a rule nor can they be interpreted to be a rule.
Learned counsel further submitted that under the provisions of Section 13 of the Act, if any dispute arises between the Board and the State, the decision of the State Government on the dispute shall be final and binding. The answer to this submission is that a decision of the State Government under Section 13(2) cannot override the specific statutory provisions of Section 9. The basic point to be noted is that no Rule has been established which altered the service conditions in regard to leave encashment to which admittedly the first respondent as an employee of the erstwhile local body was entitled. The fact that the first respondent was, as a part of the service conditions of service of the local body, entitled to leave encashment has not been questioned in the special appeal.
The special appeal is lacking merit which is accordingly dismissed. There shall be no order as to costs.
Order Date :- 2.2.2016
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
Chief Justice's Court
Civil Misc. Delay Condonation Application No.8816 of 2016
In re :
Case :- SPECIAL APPEAL DEFECTIVE No. - 25 of 2016
Appellant :- The U.P. Basic Shiksha Parishad And 4 Ors.
Respondent :- Dharnidhar Dubey
Counsel for Appellant :- Bhanu Pratap Singh
Counsel for Respondent :- Subhash Chandra Tiwari
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
This application seeks condonation of delay of 1 year 104 days in filing the special appeal.
Since the delay has satisfactorily been explained in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned.
The application is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 2.2.2016
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
AFR
Chief Justice's Court
Case :- SPECIAL APPEAL DEFECTIVE No. - 25 of 2016
Appellant :- The U.P. Basic Shiksha Parishad And 4 Ors.
Respondent :- Dharnidhar Dubey
Counsel for Appellant :- Bhanu Pratap Singh
Counsel for Respondent :- Subhash Chandra Tiwari
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
This special appeal is directed against the judgment of the learned Single Judge dated 25 August 2014. Prior to the enactment of the Uttar Pradesh Basic Education Act, 1972 (UP Act No.34 of 1972)1 and the constitution of the Board of Basic Education, all basic institutions from class I to V and class VI to VIII in the State were under the control of the local bodies. After the constitution of the Board of Basic Education upon the enactment of U.P. Act No. 34 of 1972, all such institutions and their employees were transferred to the Board under the provisions of Section 9. Since the date of transfer, the service conditions of the teaching and other employees of basic institutions are governed by the statutory Rules applicable to the employees of the Board.
The respondent was initially appointed on 13 July 1965 in the city area of Mirzapur and his services were transferred to the Basic Shiksha Parishad on 30 July 1981. He attained the age of superannuation on 30 June 2007 after completing service of 41 years 11 months and 17 days. In his writ petition, the respondent sought to claim the benefit of the facility of leave encashment on the date of his superannuation. This claim of the respondent was founded on a judgment of the Public Service Tribunal dated 15 May 1999 in a case titled as Rajeshwar Prasad Singhal vs. Secretary, Basic Shiksha Parishad2. The case before the Public Service Tribunal also dealt with the claim of an employee who was earlier an employee with a local body and had been transferred to and absorbed in the Basic Shiksha Parishad on 1 August 1972. The Tribunal upheld the claim of leave encashment by its judgment. The judgment of the Tribunal was questioned in a special appeal before the Division Bench of this Court. The Division Bench by its judgment dated 22 July 2004 dismissed the writ petition on the ground that the Basic Shiksha Parishad had failed to establish Rules disentitling the employees of the Parishad to leave encashment. However, the Court also observed that the judgment should not be interpreted to mean a direction that in all such cases the employees would be entitled to leave encashment in the absence of Rules. The judgment of the Division Bench was challenged before the Supreme Court. However, the Civil Appeal3 was dismissed in default on 10 March 2011.
Now, it is in this background that the issue which falls for determination in the special appeal needs to be taken up.
The learned Single Judge while allowing the writ petition has relied upon the course of litigation culminating in the judgment of the Supreme Court and, it would appear on the principle of parity held that the respondents were also entitled to the leave encashment, there being no other impediment.
When the Uttar Pradesh Basic Education Act, 1972 was enacted, Section 9 provided for the transfer of employees of the erstwhile local bodies who were engaged exclusively in connection with basic schools. Section 9 provides as follows:
"9. Transfer of employees. - (1) On and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection in basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are (altered by the rules made by the State Government in that behalf) :
Provided that any service rendered under the local body by any such teacher, officer or other employee before the appointed day shall be deemed to be service rendered under the Board :
Provided further that the Board may employ any such teacher, officer or other employee in the discharge of such functions under this Act as it may think proper and every such teacher, officer or other employee shall discharge those functions accordingly.
(2) Nothing in sub-section (1) shall apply to any teacher, officer or other employee, who by notice in writing in that behalf to the State Government within a period of two months from the appointed day intimates his option for not becoming an employee of the Board, and where any employee gives such notice, his service under the local body shall stand determined with effect from the appointed day and he shall be entitled to compensation from the local body, which shall be as follows -
(a) in the case of a permanent employee, a sum equivalent to his salary (including all allowances) for a period of three months or for the remaining period of his service, whichever is less;
(b) in the case of a temporary employee, a sum equivalent to his salary (including all allowances) for one month or for the remaining period of his service, whichever is less.
(3) Notwithstanding anything in sub-section (1), any person referred to therein, who becomes an employee of the Board shall be liable to be transferred from the school or from the local area in which he was employed immediately before the appointed day to any other school or institution belonging to Board or, as the case may be, to any other local area at the same remuneration and on the same other terms and conditions of service as governed him immediately before such transfer [until such tenure, remuneration and other terms and conditions are altered by the rules referred to in sub-section (1)] :
Provided that no teacher of a basic school (which before the appointed day belonged to a local body) shall be transferred to a basic school belonging to any other local body except with his consent.
(4) If any question arises whether the services of any person stand transferred to the Board under sub-section (1) or as to the remuneration and other terms and conditions of service of such employee immediately before the appointed day, it shall be decided by the State Government whose decision shall be final.
(5) Any provident fund maintained by any local body for the employees referred to in sub-section (1) along with all contributions of such employees as well as of the local body which ought to have been but have not been deposited therein before the appointed day, shall be transferred by the local body to the Board, which shall hold it in trust for the employees concerned in accordance with the terms and conditions governing such fund.
(6) The transfer of services of any employee to the Board under sub-section (1) shall not entitle any such employee to any compensation and no such claim shall be entertained by any Court, Tribunal or Authority."
As a result of Section 9, teachers, officers and employees engaged by local bodies exclusively in connection with the basic schools before the appointed date (1 August 1972) became employees of the Board to whom their services were transferred. Section 9 provides that they would hold office by the same tenure, on the same remuneration and upon the same terms and conditions of service as would have been held when the Board had not been constituted. Moreover, the same conditions of service were to govern unless and until the tenure, remuneration or conditions were altered by Rules made by the State Government in that behalf. In exercise of the powers conferred by Section 19 of the Act, the State Government formulated the Uttar Pradesh Basic Education (Teachers) Service Rules, 19814.
The entire case of the Parishad in the special appeal before this Court is that the Rules of 1981 are silent in regard to leave encashment and hence, since a specific provision was not introduced for allowing leave encashment, the facility of leave encashment which was otherwise available to the employees of local bodies would cease upon their services being transferred to the Board.
The next limb of the submission is that in the present case, it appears that a decision was communicated by the Parishad on 2 December 1994 in pursuance of a Government Order dated 5 May 1992 by which it was decided that no leave encashment would be granted to the transferred employees.
In our view, neither the circular of the Parishad dated 2 December 1994 nor for that matter, the communication of the State Government dated 5 May 1992 would amount to a Rule within the meaning of Section 9. Section 9 of the Act specifically protects the tenure, remuneration and other terms and conditions of service of the transferred employees until they are altered by Rules made by the State Government in that behalf. The silence of the Rules of 1981 cannot be construed as an alteration of an entitlement which existed to leave encashment prior to the transfer of the employees on the appointed date to the Basic Shiksha Parishad. In fact, the record also contains a specific representation made on 24 February 2006 by the Basic Shiksha Parishad to the Special Secretary in the State Government in the Education Department referring to the fact that the facility of leave encashment was available to the employees of the erstwhile local bodies. It was followed by a further communication dated 29 May 2006 of the Director of Basic Education to the Joint Secretary in the Education Department once again reiterating the same position. The issue is whether the entitlement to leave encashment which would be protected by Section 9 of the Act in the case of transferred employees was altered by any Rule. The answer must be in the negative.
The State has not been able to place before this Court any such Rule altering the entitlement. The communication of the State Government dated 5 May 1992 read with the circular of the Board dated 2 December 1994 cannot be regarded as a Rule within the meaning of Section 9. Hence, we see no merit in the contention that silence of the rules amounted to an alteration in the service conditions of transferred employees. Moreover, the submission of the learned Standing Counsel that these communications were not challenged before the learned Single Judge or before the Public Service Tribunal would not advance the case of the appellant. The simple issue is as to whether this would constitute a Rule within the meaning of Section 9. Neither of them purport to be a rule nor can they be interpreted to be a rule.
Learned counsel further submitted that under the provisions of Section 13 of the Act, if any dispute arises between the Board and the State, the decision of the State Government on the dispute shall be final and binding. The answer to this submission is that a decision of the State Government under Section 13(2) cannot override the specific statutory provisions of Section 9. The basic point to be noted is that no Rule has been established which altered the service conditions in regard to leave encashment to which admittedly the first respondent as an employee of the erstwhile local body was entitled. The fact that the first respondent was, as a part of the service conditions of service of the local body, entitled to leave encashment has not been questioned in the special appeal.
The special appeal is lacking merit which is accordingly dismissed. There shall be no order as to costs.
Order Date :- 2.2.2016
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
Chief Justice's Court
Civil Misc. Delay Condonation Application No.8816 of 2016
In re :
Case :- SPECIAL APPEAL DEFECTIVE No. - 25 of 2016
Appellant :- The U.P. Basic Shiksha Parishad And 4 Ors.
Respondent :- Dharnidhar Dubey
Counsel for Appellant :- Bhanu Pratap Singh
Counsel for Respondent :- Subhash Chandra Tiwari
Hon'ble Dr. Dhananjaya Yeshwant Chandrachud,Chief Justice
Hon'ble Yashwant Varma,J.
This application seeks condonation of delay of 1 year 104 days in filing the special appeal.
Since the delay has satisfactorily been explained in the affidavit filed in support of the delay condonation application, the delay in filing the appeal is condoned.
The application is, accordingly, disposed of. There shall be no order as to costs.
Order Date :- 2.2.2016
VMA
(Dr. D.Y. Chandrachud, C.J.)
(Yashwant Varma, J.)
इलाहाबाद। हाईकोर्ट ने एक निर्णय में कहा है कि उत्तर प्रदेश बेसिक शिक्षा परिषद के गठन के पूर्व नियुक्ति पाने वाले शिक्षक व कर्मचारी अवकाश नकदीकरण के हकदार हैं क्योंकि बेसिक शिक्षा अधिनियम 1972 की धारा नौ इस संबंध में ऐसा कोई प्रावधान नहीं करती जिससे स्थानीय निकायों से स्थानांतरित कर्मचारियों के अवकाश नकदीकरण पर किसी प्रकार का प्रतिबंध लगता हो।
यह निर्णय मुख्य न्यायमूर्ति डॉ. डीवाई चंद्रचूड एवं न्यायमूर्ति यशवंत
वर्मा की खंडपीठ ने बेसिक शिक्षा परिषद की विशेष अपील को खारिज करते हुए
दिया है। मामले के तथ्यों के अनुसार हाईकोर्ट की एकल पीठ ने मिर्जापुर
निवासी धरणीधर दुबे की याचिका पर सुनवाई के बाद याची को अवकाश नकदीकरण देने
का आदेश दिया था। बेसिक शिक्षा परिषद ने एकल पीठ के इस आदेश की वैधानिकता
को विशेष अपील के माध्यम से चुनौती दी थी। मामले के तथ्यों के अनुसार
धरणीधर दुबे ने 13 जुलाई 1965 को मिर्जापुर शहरी क्षेत्र में नियुक्ति पाई।
बाद में बेसिक शिक्षा परिषद का गठन हुआ तो उन्हें परिषद में स्थानांतरित
कर दिया गया। अवकाश प्राप्त करने के बाद धरणीधर दुबे को अवकाश नकदीकरण देने
से इनकार कर दिया गया। कहा गया कि पूर्व में नियोजित कर्मचारियों की सेवा
शर्तों में अवकाश नकदीकरण का प्रावधान नहीं है। इसपर धरणीधर ने याचिका
दाखिल की तो कोर्ट ने याची को अवकाश नकदीकरण दिए जाने का आदेश दिया था।
बेसिक शिक्षा परिषद बनने से पहले के कर्मचारी अवकाश नकदीकरण के हकदार : इलाहाबाद हाईकोर्ट
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Reviewed by Brijesh Shrivastava
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