SMT. MITHILESH RAIversusSTATE OF U.P. AND OTHERS

                                                                Reserved

          HIGH COURT OF JUDICATURE AT ALLAHABAD
                     WRIT - A No. - 48117 of 2010

Smt. Mithilesh Rai
                                                            …..Petitioner(s)

                                Versus

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


Counsel for Petitioner(s)          : J. P. Singh
Counsel for Respondent(s)          : B.p.singh, C. S. C.


Court No. - 52

            HON'BLE MRS. MANJU RANI CHAUHAN, J.

1. Heard Mr. J.P. Singh, learned counsel for the petitioner, Dr. Santosh
Kumar Shukla, learned Additional Chief Standing Counsel for the State-
respondents and Mr. Manoj Singh Rathore, learned counsel for the
respondent no.5 and perused the records.

2. The present petition was allowed by this Court by order dated
08.07.2015, whereby a direction was issued to the District Basic
Education Officer to ensure payment of salary to the sole petitioner with
effect from the year 1992, i.e. from the date when such payment was
admittedly being made to the other teachers and employees of the
institution in question. Aggrieved by the aforesaid order, the State of
Uttar Pradesh and three others preferred Special Appeal Defective No.
245 of 2016, State of U.P. and three others v. Smt. Mithlesh Yadav and
two others. The said special appeal was allowed by order dated
30.03.2016, whereby the matter was remanded to the learned Single
Judge for fresh consideration on all aspects of the controversy.
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3. In view of the aforesaid order of remand passed in special appeal, the
matter has consequently been taken up for consideration afresh on
merits.

4. The present writ petition has been filed seeking quashing of the
impugned order dated 28.06.2010 passed by respondent no. 2, Assistant
Director (Basic), Azamgarh Region Azamgarh. A further prayer has been
made for issuing a direction to the respondents to ensure payment of
salary to the petitioner from the State Exchequer with effect from the
date on which the Institution was brought under the grant-in-aid scheme.

5. Placing the brief facts of the case, learned counsel for the petitioner
submits that the petitioner was appointed as an Assistant Teacher by the
Committee of Management of Kaushalya Kanya Junior High School,
Sudaipur, Azamgarh, which is a recognized and aided Junior High
School. The petitioner was appointed on 01.07.1973, and her
appointment was subsequently approved by the Additional District Basic
Education Officer, Azamgarh by order dated 03/06.07.1974.

6. The services of teachers in recognized Junior High Schools are
governed by the provisions of the U.P. Recognized Basic Schools (Junior
High Schools) (Recruitment and Conditions of Service of Teachers)
Rules, 1978 (hereinafter referred to as the “Rules of 1978”). Rule 4
thereof prescribes the minimum qualifications to be possessed by a
candidate for appointment to the post of Assistant Teacher.

7. Thus, under Rule 4 of the Rules of 1978, the minimum qualification
prescribed for appointment to the post of Assistant Teacher was
Intermediate along with a teachers’ training qualification recognized by
the State Government, such as HTC, JTC, BTC or CTET. Since the
requirement of possessing a training qualification could not be applied
retrospectively to teachers who had already been appointed and were in
service, such teachers were permitted to acquire the requisite
qualification by appearing in the departmental examination conducted by
the Registrar, Departmental Examinations, Uttar Pradesh, Allahabad.
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8. In this backdrop, the District Basic Education Officer, Azamgarh, by
letter/order dated 30.04.1986, required the petitioner to appear in the
departmental examination scheduled to be held on 09.05.1986 and
10.05.1986. The petitioner, being one of the left-out candidates, was
accordingly permitted to appear in the said examination and was allotted
roll number 6939.

9. Thereafter, the State Government issued Government Order dated
05.06.1987, whereby exemption from the requirement of undergoing
teachers’ training was extended to such untrained teachers who had
completed ten years of service. Since the petitioner had been appointed
in the year 1973 and her appointment had already been duly approved,
she became entitled to the benefit of the aforesaid Government Order
and stood exempted from the requirement of obtaining the training
qualification.

10. The Institution was subsequently brought within the grant-in-aid
scheme in March 1991; however, actual payment of salary from the State
Exchequer commenced only in the year 1992. The name of the petitioner
was not included in the list of teachers for whom salary was sanctioned,
purportedly on the ground that she did not possess the requisite training
qualification. Upon realizing the position, the Manager of the Institution
subsequently submitted the salary bill in respect of the petitioner, but the
same was not passed.

11. Thereafter, on 30.11.1993, the Manager submitted a representation
before the competent authority seeking release of salary to the petitioner.
A reminder was also submitted on 23.08.1994. Pursuant thereto, the
District Basic Education Officer passed an order dated 07.09.1998
requiring the Finance and Accounts Officer to ensure payment of the
petitioner’s salary after due verification of the relevant records and
documents.

12. As the petitioner’s salary was still not released, she approached this
Court by filing Writ-A No. 35424 of 1998. The said writ petition was
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disposed of by order dated 16.11.1998 with a direction to the Finance
and Accounts Officer to examine the petitioner’s claim and take
appropriate action in accordance with law, after affording her an
opportunity of hearing.

13. Thereafter, on 14.12.1998, the Finance and Accounts Officer issued a
communication requiring the petitioner to produce her appointment
letter, the order relating to her appointment, and all relevant educational
certificates for verification. Subsequently, by letter dated 07.06.1999, the
District Basic Education Officer sought a legal opinion from the learned
DGC (Civil) Azamgarh with regard to the petitioner’s entitlement to
payment of salary. The learned DGC (Civil), upon consideration of the
matter, furnished a favourable opinion, opining that the petitioner was
entitled to the trained grade and, consequently, to the benefits attached
thereto.

14. Accordingly, the District Basic Education Officer, Azamgarh, passed
a fresh order dated 22.07.1999, directing the Manager and Headmistress
of the Institution to ensure payment of salary to the petitioner, subject to
obtaining clearance from the Finance and Accounts Officer. Thereafter,
on   31.07.2000,    the   Finance    and   Accounts     Officer   made    a
recommendation for release of salary to the petitioner in the untrained
grade.

15. As the petitioner’s salary was still not released despite the aforesaid
orders and recommendation, she was constrained to approach this Court
by filing Writ-A No. 47062 of 2000. The said writ petition was disposed
of by order dated 06.04.2010, directing the Assistant Director of
Education (Basic), Azamgarh Region, Azamgarh to examine the
recommendations made by the competent authorities and to pass an
appropriate order, keeping in view the submissions advanced by the
petitioner before this Court.

16. The petitioner, in substance, submitted that having completed the
requisite period of service, she was entitled to be placed in the trained
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grade and to receive the salary and consequential benefits attached
thereto.

17. In compliance with the order dated 06.04.2010 passed by this Court
in Writ Petition No. 47062 of 2000 petitioner submitted representation
alongwith, certified copy of the order before Assistant Director of
Education on 20.04.2010, contending that, since the petitioner's
appointment as Assistant Teacher had been duly approved and she had
been appointed prior to 1978, she was entitled to receive salary from the
State Exchequer. She was also exempted from the requirement of
training in terms of the Government Order dated 05.06.1987. Thereafter,
respondent no.2 issued notices to the petitioner, the Manager as well as
the Headmistress of the institution, fixing 12.05.2010 as the date of
hearing. The petitioner, however, could not appear on the said date.
Consequently, the impugned order dated 28.06.2010 was passed,
rejecting the petitioner's representation.

18. Learned counsel for the petitioner submits that the impugned order
has been passed by respondent no.2 proceeding on an erroneous
assumption of both fact and law, namely, that the provisions of the U.P.
Basic Education Staff Rules, 1973 were applicable to the petitioner's
selection and appointment. It is contended that the said assumption is
wholly misplaced.

19. Learned counsel for the petitioner submits that the impugned order
proceeds on the premise that the institution was granted permanent
recognition in 1984 and was subsequently brought under the grant-in-aid
scheme in 1991. It has further been observed that salary could be paid
from the State Exchequer only to teachers duly appointed against
sanctioned posts in accordance with the applicable rules. According to
the respondents, there were only four sanctioned posts of Assistant
Teachers, whereas the petitioner was appointed by the Manager against
an unsanctioned post and without following the prescribed selection
procedure. On this basis, it has been held that the State Government
could not be saddled with the liability to pay her salary. Consequently,
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the petitioner's appointment was treated as irregular, and it was held that
neither could her appointment be regularised by exempting her from the
requisite training nor could salary be paid to her from the State
Exchequer. Her representation was, accordingly, rejected.

20. Learned counsel for the petitioner submits that the impugned order
proceeds on an erroneous premise that the petitioner's appointment,
made in the year 1973, was required to conform to the provisions of the
U.P. Basic Education Staff Rules, 1973 or to the subsequent statutory
regime governing recruitment in recognised Junior High Schools. It is
contended that the Rules of 1973 were essentially framed in relation to
employees whose services stood transferred to the Board under Section 9
of the U.P. Basic Education Act, 1972 and primarily provide the
framework relating to disciplinary proceedings and punishment; they do
not prescribe the procedure for selection and appointment of teachers in
recognised Junior High Schools. The petitioner's appointment having
admittedly been made by the Committee of Management in 1973, at a
time when the U.P. Recognised Basic Schools (Junior High Schools)
(Recruitment and Conditions of Service of Teachers) Rules, 1978 had
not even come into force, the subsequent requirements prescribed by the
Rules of 1978 could not retrospectively be employed to invalidate an
appointment already made. The Rules of 1978 themselves came into
force only on 13.02.1978 and thereafter provided a statutory mechanism
concerning recruitment, selection, approval and appointment of teachers.

21. Learned counsel further submits that the petitioner's appointment by
the Management in 1973 and the approval accorded by the competent
educational authority in 1974 are not in dispute. The respondents,
therefore, cannot now disregard the contemporaneous approval and the
subsequent departmental orders merely by referring to the fact that the
institution obtained permanent recognition in 1984 or was subsequently
brought within the grant-in-aid scheme in 1991. The subsequent
recognition or grant-in-aid status cannot, by itself, retrospectively alter
the legal character of an appointment made several years earlier. The
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very scheme of the 1978 Rules recognises the Management as the body
responsible for filling vacancies and, after the prescribed selection
process and approval, expressly contemplates appointment by the
Management.

22. It is further submitted that respondent no. 2 has failed to distinguish
between the validity of an appointment at the time it was made and the
conditions subsequently prescribed for appointments made after
commencement of the statutory rules. The petitioner cannot be subjected
retrospectively to qualifications, selection procedures or training
requirements introduced by a later statutory regime unless there is a clear
provision giving such requirements retrospective operation. The settled
judicial approach is that service conditions and qualifications prescribed
by subsequent rules cannot ordinarily be invoked to invalidate an
appointment which had already been made before those rules came into
force. The Allahabad High Court has, in a case concerning appointments
made before the Rules of 1978 came into force, specifically examined
the distinction between such pre-existing appointments and the elaborate
recruitment mechanism subsequently introduced by the Rules of 1978.

23. Learned counsel also submits that the respondents have completely
overlooked the earlier departmental proceedings and reports in which the
petitioner's position was considered and, pursuant to the Government
Order then applicable, she was exempted from the requirement of
training and directions were issued for payment of salary. Such orders,
having been passed by the competent authorities upon consideration of
the petitioner's appointment and service record, could not have been
brushed aside by respondent no. 2 without examining their legal effect
and without recording cogent reasons for taking a contrary view. The
impugned order, instead of addressing these material circumstances,
proceeds on the assumption that the petitioner's appointment was liable
to be tested under a later regime.

24. It is further contended that the finding that the petitioner was
appointed against an "unsanctioned post" is unsupported by any proper
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determination of the sanctioned strength applicable to the institution at
the relevant point of time. The subsequent statement that only four posts
were sanctioned cannot, by itself, establish that the post against which
the petitioner was appointed in 1973 did not exist or was not permissible
under the then prevailing arrangement. The relevant question was
whether the appointment was valid under the law applicable on the date
of appointment and whether the competent authority thereafter accepted
or approved the same. Respondent no. 2 has failed to undertake that
exercise.

25. Learned counsel, therefore, submits that the impugned order suffers
from a fundamental error in law in judging a 1973 appointment by
standards introduced subsequently. Once the petitioner's appointment by
the Management and its approval by the competent educational authority
in 1974 are undisputed, and particularly when the department itself had
subsequently recognised her status, exempted her from training and
directed payment of salary, the petitioner's claim could not have been
rejected merely by retrospectively applying the 1973 or 1978 regulatory
framework. The impugned order, being founded upon an incorrect legal
premise and ignoring material orders and circumstances bearing directly
upon the petitioner's status, is liable to be set aside.

26. Learned counsel for the petitioner submits that the requirement of
possessing a recognised teacher-training qualification cannot be
retrospectively applied to the petitioner's appointment made in the year
1973. It is contended that Rule 4 of the U.P. Recognised Basic Schools
(Junior High Schools) (Recruitment and Conditions of Service of
Teachers) Rules, 1978, which came into force on 13.02.1978, expressly
prescribed, for the first time under the statutory recruitment regime
governing recognised Junior High Schools, Intermediate qualification
together with a recognised teacher-training course, such as HTC, JTC,
BTC or Certificate of Training, as the minimum qualification for
appointment to the post of Assistant Teacher. The said provision,
however, cannot by itself establish that an identical training qualification
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was a mandatory statutory requirement for an appointment made in
1973, several years prior to the commencement of the Rules. The
validity of the petitioner's appointment, therefore, has to be examined
with reference to the legal and regulatory regime actually prevailing on
the date of her appointment and not by importing qualifications
subsequently prescribed by the Rules of 1978. Unless the respondents
establish that, in the year 1973, there existed a statutory provision
applicable to the petitioner's institution which mandatorily required such
training qualification, the subsequent prescription contained in Rule 4 of
the 1978 Rules could not legitimately be used to invalidate her earlier
appointment.

27. Learned counsel for the petitioner has placed reliance upon Smt.
Sarla Srivastava v. District Inspector of Schools, Allahabad and another,
1998 (1) AWC 250, wherein this Court held that the qualifications
prescribed under the Rules of 1978 could not be retrospectively applied
to an appointment made before the enforcement of the said Rules. In the
absence of any statutory provision requiring existing teachers to undergo
screening on the ground of subsequently prescribed qualifications, their
salary could not be withheld merely because they did not possess the
qualifications subsequently introduced.

28. Reliance has further been placed upon the Division Bench judgment
in State of U.P. and others v. Rosalia Minj Sohanta and another, reported
in 2003 SCCOnline 517, wherein the Court considered an appointment
dated 17.07.1973 and noticed that the statutory Rules of 1975 came into
force only on 01.07.1975. The Division Bench held that, when the
appointment was made, the qualifications subsequently prescribed by the
statutory Rules were not in force and the State had failed to establish
what qualification was prescribed on the date of appointment. It was
consequently held that, in the absence of a prescribed qualification
applicable on the date of appointment, the subsequent qualification could
not be retrospectively employed to invalidate the appointment.
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29. Learned counsel has also relied upon Smt. Meenakshi Sharma and
another v. State of U.P. and others, 2026 (8) ADJ 559, wherein this Court
reiterated the principle that an appointment which has been duly
considered and approved by the competent authority and followed by
long and continuous service cannot be reopened and unsettled on
technical grounds without due regard to the earlier approval and the
circumstances in which the employee was permitted to continue in
service. The decision also emphasises the significance of absence of
fraud or deliberate misrepresentation and the impermissibility of
reopening matters beyond the scope of the proceedings in which they
had earlier been considered.

30. The cumulative effect of the aforesaid authorities, as relied upon by
learned counsel for the petitioner, is that the validity of an appointment
must ordinarily be examined with reference to the law and qualifications
applicable on the date of appointment. A qualification or condition
introduced by a subsequent statutory rule cannot, in the absence of
express retrospective operation, be imported into an earlier appointment
so as to invalidate it. Where, in addition, the appointment was
subsequently approved by the competent authority and the incumbent
was permitted to continue for a long period, the subsequent authorities
must identify a legally sustainable basis for reopening such appointment;
mere reliance upon a later prescription of qualification would not, by
itself, suffice.

31. Learned counsel for the petitioner has already submitted that the
petitioner's appointment was duly approved by the competent authority
at the relevant point of time, when the U.P. Education Act was not
applicable to the institution in question. It is further submitted that the
Government Order granting exemption from the training qualification to
teachers appointed prior to the enforcement of the Rules of 1978 was
squarely applicable to the petitioner, and, in pursuance thereof, the
petitioner was being paid salary by the respondent authorities
themselves. Thus, once the petitioner's appointment had been duly
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approved and the benefit of the aforesaid Government Order had been
extended to her, the respondents could not subsequently deny her salary
by applying the provisions or requirements introduced at a later stage. In
view of the aforesaid facts and circumstances, learned counsel submits
that the petitioner is entitled to payment of salary from the State
exchequer. The judgments relied upon by the petitioner, as noticed
hereinabove, also lend substantial support to the aforesaid contention.

32. Learned counsel for the petitioner further submits that, as already
argued hereinabove, the U.P. Basic Education Staff Rules, 1973 were not
applicable to recognised Junior High Schools and, therefore, could not
govern or invalidate the petitioner's appointment made in the year 1973.
It is contended that the petitioner's appointment was required to be
examined with reference to the legal regime applicable to the institution
and prevailing on the date of her appointment.

33. Learned Standing Counsel appearing for the respondents, as well as
learned counsel appearing for the Committee of Management, could not
dispute the aforesaid facts, as placed before the Court by learned counsel
for the petitioner.

34. Having regard to the foregoing discussion, this Court is of the
considered view that the petitioner has made out a case for interference
with the impugned order. The petition, accordingly, deserves to be
allowed and is hereby allowed.

35. The impugned order dated 28.06.2010, passed by the respondent
no.2 is hereby quashed.

36. A writ of mandamus is issued to respondent no. 3, the District Basic
Education Officer, Azamgarh, to ensure payment of salary to the
petitioner with effect from the year 1992, from which date such payment
was admittedly being made to the other teachers and employees of the
institution in question. The petitioner shall accordingly be entitled to the
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                            arrears of salary, or the arrears of difference of salary, as the case may
                            be, for the period during which she was denied such payment.

                            37. The petitioner shall further be entitled to all consequential monetary
                            and service benefits accruing to her under the provisions of the U.P.
                            Payment of Salaries Act, 1978, including all retiral dues to which she
                            may otherwise be legally entitled.

                            38. The aforesaid exercise shall be completed and the admissible amount
                            shall be paid to the petitioner within a period of six months from the date
                            of production of a certified copy of this order before respondent no. 3.

                            39. There shall be no order as to costs.

                                                                       (Mrs. Manju Rani Chauhan,J.)

                            October 1, 2026
                            Jitendra/-




Digitally signed by :-
JITENDRA KUMAR YADAV
High Court of Judicature at Allahabad