LAKHRANIYA DEVIversusSTATE OF U.P. AND 3 OTHERS

        HIGH COURT OF JUDICATURE AT ALLAHABAD
                       WRIT - A No. - 2695 of 2019

Lakhraniya Devi
                                                         …..Petitioner(s)

                                Versus

State of U.P. and 3 others
                                                       …..Respondent(s)


Counsel for Petitioner(s)         : Mani Shankar, Santosh Kumar Rai,
                                    Udai Shankar Chauhan
Counsel for Respondent(s)         : C.S.C., Prem Chand Pandey

                                                                    AFR
Court No. - 6

            HON'BLE SIDDHARTH NANDAN, J.

1. Heard Shri Santosh Kumar Rai, Advocate appearing on behalf of the
petitioner and Prem Chand Pandey, Advocate appearing on behalf of
respondent no.4 and learned Standing Counsel for the respondent nos.1
to 3.

2. Rejoinder affidavit to the counter affidavit of Committee of
Management filed today, the same is taken on record.

3. The present petition has been filed challenging the order dated
07.05.2018 passed by the respondent No.2, by way of which, without
giving any consideration to the documents submitted by the petitioner on
05.07.2017 or returning a finding to the said effect, merely by stating
that the husband of the petitioner had never received the salary from the
State Exchequer and as per the Principal's report that the appointment of
the petitioner's husband was not in accordance with law, the claim for
arrears of salary towards the services rendered by the petitioner's
husband and the consequential retiral benefits has been denied.
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4. The contention of the learned counsel for the petitioner is that the said
finding is against the evidence on record, as the Manager of the
Institution vide its letter dated 25.07.2015 has specifically stated that the
petitioner's husband was appointed on 15.04.1964, adhering to the due
process of law and he was discharging his duties continuously since his
date of appointment till his date of superannuation i.e. 30.06.2000; and
thereafter he had died on 16.03.2004.

5. Learned counsel for the petitioner has further placed reliance on a
decision of an intra-court appeal being Special Appeal No. 352 of 2005
(State of U.P. and others Vs. Bhrigunath Ram and others) wherein the
Division Bench of this Court while observing that, the question whether
the petitioners in the writ petitions were validly appointed teachers has
not been adjudicated at any stage; had given a direction to the concerned
authorities to examine the appointment of the petitioners and in case
appointment of the petitioners are found to be in accordance with law,
salary may be paid after giving due opportunity of hearing and a
reasoned order was required to be passed.

6. For ready reference, the operative portion of the judgement dated
23.03.2015 is reproduced below: -

      "So far as claim of the petitioners are that they are entitled for the
      salary similar to the teachers of the High School and Intermediate
      College under 1978 Act is concerned, issue is no more res integra.
      It is covered by the decision of the Supreme Court referred
      hereinabove. Therefore, the view of learned Single Judge is liable
      to be affirmed. However, a question whether the petitioners in the
      writ-petitions are validly appointed teachers, has not been
      adjudicated at any stage. Therefore, we direct the authority
      concerned to examine the appointment of the petitioners and in
      case appointments of the petitioners are found to be in accordance
      to the law, the salary may be paid and in case if the authority
      concerned may arrive to the conclusion after giving opportunity to
      the hearing to the petitioners that they are not legally appointed, a
      reasoned order may be passed in this regard and in such
      circumstances, the petitioners may not be entitled for the salary in
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      accordance to the law laid down by the Court.With the aforesaid
      directions, both the special appeals stand disposed of."

7. It appears that while taking a decision on the issue, an inspection
which was made much later in time, a report was submitted that five
incumbents were found to be working; and obviously the name of the
petitioner's husband was not there since he had already expired by then,
after having retired on 30.06.2000. The said consideration in the
impugned order dated 28.05.2015 is also reproduced herein below: -

      "सर्व श्री भुगुनाथ राम स०अ० की नियुक्ति दिनांक 15.01.1964 को प्राइमरी अनुभाग में की गयी
      दिनांक 30.06.2000 को सेवानिवृत्त होने के पश्चात् दिनांक 16.03.2004 को इनकी मृत्यु हो
      गयी।

      सर्वश्री अरूण कु मार चौबे स०अ० की नियुक्ति प्राइमरी अनुभाग में दिनांक 01.03.1985 को की
      गयी। अद्यावधि कार्यरत हैं।

      सर्व श्री धनेन्द्र कु मार पाण्डे य, स०अ० की नियुक्ति प्राइमरी अनुभाग में दिनांक 01.07.1989 को
      की गयी अद्यावधि कार्यरत हैं।

      सर्व श्री तारके श्वर नाथ सिंह, स०अ० की नियुक्ति प्राइमरी अनुभाग में दिनांक 01.07.1989 को
      की गयी अद्यावधि कार्यरत हैं।

      श्रीमती उर्मिला गुप्ता, स०अ० की नियुक्ति दिनांक 01.07.1992 को प्राइमरी अनुभाग में की गयी
      सेवाकाल में ही इनकी मृत्यु दिनांक 09.06.2014 को हो गयी।

      सर्व श्री सुरे श राम वर्मा, स०अ० की नियुक्ति दिनांक 05.11.1993 को प्राइमरी अनुभाग में की
      गयी। अद्यावधि कार्यरत हैं।"

8. Learned counsel for the petitioner further submits that, the issue
regarding the payment of salary, to the attached primary sections, is no
longer res integra and it has been conclusively determined by this Court,
as well as the Apex Court, that teachers of primary section classes,
which has been given due recognition and is attached to Junior High
School, are entitled to the benefit of Section 10 of the Act, 1978; and as
such schools having the Junior Basic School and Senior Basic School
either separately or together or under the same Board, i.e., the Board of
Basic Education as per Act, 1972, are entitled to salary; and any other
view may render the provisions of Act, 1978 unconstitutional on the
ground of discrimination.

9. This Court has already held that Junior High School (Class 1 to 5),
when they are opened in a Senior Basic School (Class 6 to 8), after
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obtaining separate recognition and for which there may not be a separate
order of grant-in-aid by the government, are entitled to salary.

10. Even otherwise, if any objection which the State could have had
regarding the payment of salary from the State Exchequer, also does not
seems to be reasonable as the perusal of the letter dated 15.01.2005,
clearly indicates that the District Inspector of Schools, Ballia had sought
the salary bills of the employees of the same Institution from December,
2004; and thereafter the salary to the other employees of the same
Institution is being paid.

11. In view of the aforesaid, it has been contended, that once the
petitioner's husband being appointed, as per procedure prescribed; and
the said documents were before the authorities concerned by way of
letter dated 25.07.2015, it was incumbent upon the authorities to
consider the said claim; and not confine it’s consideration, to the said
five teachers who were found working in the month of December, 2004.

12. For ready reference, the letter indicating the aforesaid position, dated
15.01.2005 is reproduced below:
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13. The petitioner has also placed before this Court an appointment letter
dated 27.11.1995 which was written by the Principal to the Deputy
Director of Education; wherein also the name of the petitioner's husband
is placed at Serial No.1. The letter of appointment dated 15.01.1965 is
also on record.

14. It has also not been disputed that the petitioner was contesting the
matter before this Court since 1996, which is evident from the filing of
Writ Petition No. 25161 of 1996 (Shri Bhrigunath Ram and others vs.
State of U.P. and others); and the said proceeding was clubbed with the
proceedings initiated by other employees, i.e., by way of Writ Petition
No. 54865 of 1996 (Shri Tarkeshwar Nath Singh Vs. State of U.P. and
others); and as such the non-consideration of the various letters which
indicated the appointment of the petitioner's husband, is also prima facie
not in adherence to the judgment dated 23.03.2015 in Special Appeal
No. 532 of 2005 (State of U.P. and others vs. Bhrigunath Ram and
others).

15. Learned Standing Counsel does not dispute the settled legal
proposition, that the primary school teachers were also entitled to the
payment of salary without any separate order of grant-in-aid; if they are
attached to the senior sections; but however maintains that the
appointment of the petitioner was to be verified; but at the same time
does not dispute that the validity of the appointment was only considered
on the basis that he was not found to be working in a report which was
submitted somewhere in December, 2004; and admittedly the petitioner's
husband by the said date had already retired on 30.02.2000 and
subsequently died on 16.03.2004.

16. In view of the aforesaid, this Court finds that the order dated
28.05.2025 does not consider the said question and even when the
impugned order dated 07.05.2018 was passed in pursuance of the
direction of this Court, due consideration was not given, though
admittedly the petitioner has already filed her reply and the documents
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are also said to have been filed by the Management pertaining to
appointment of the petitioner's husband.

17. The respondent No. 4 has also filed its counter affidavit and in the
said affidavit it has been mentioned that the petitioner's husband had
superannuated on 30.06.2000 after completing entire service and later he
died on 16.03.2004.

18. For ready reference, paras 6, 7 and 8 of the counter affidavit filed on
behalf of respondent No. 4 are reproduced below:

      "6. That during pendency of proceedings before this Hon'ble court
      the husband of petitioner Bhrigunath Ram was superannuated on
      30.6.2000 after completing entire service and latter on husband of
      petitioner Bhrigunath Ram was expire on 16.3.2004.

      7. That the division bench judgment in Special appeal which was
      filed by state Government against judgment of learned single
      judge decided on 23.3.2015 in favor of petitioner as such entire
      retrial benefits of husband of petitioner Bhrigunath Ram should be
      released in favor of petitioner the deponent already been submitted
      the bill of retrial dues before authority concern.

      8. That as per record of deponent husband of petitioner Bhrigunath
      Ram appointment was as accordance with law and he was retired
      after completing entire service as such petitioner being wife of
      employee deceased entitled retrial dues as well as pension."

19. In view of the aforesaid, the impugned order dated 07.05.2018
cannot be sustained to the extent it rejects the claim of the salary of the
petitioner's husband and the consequential retirement benefits; and
however, in view of the observations and the documents brought on
record by none other than the respondents, the matter stands relegated to
the respondent No. 2, i.e., the District Inspector of Schools, Ballia to
consider the documents which have been placed by the Management as
well as the petitioner in support of the appointment of the petitioner's
husband and pass a reasoned order strictly adhering to the principles of
natural justice and taking into account the observations made by this
Court herein above, expeditiously, preferably within a period of two
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                            months from the date of filing of a detailed representation along with the
                            supporting documents by the petitioner.

                            20. It is made clear that the claim of the petitioner shall not be non-suited
                            merely on account of the fact that prior to the date of death or the date of
                            retirement he was not paid any salary from the State Exchequer; as
                            admittedly the same was only released by the State in the year 2005 with
                            respect to other employees of the same Institution and the scrutiny shall
                            be strictly confined to the validity of the appointment of the petitioner's
                            husband.

                            21. With the aforesaid observations / directions, the writ petition stands
                            allowed.



                                                                               (Siddharth Nandan,J.)

                            September 30, 2026
                            S.Prakash




Digitally signed by :-
SHASHI PRAKASH
High Court of Judicature at Allahabad