Devendra Pal Singh Chauhan, J. - (1.) THE U.P. Board of Basic Education (also called as Basic Shiksha Parishad) constituted under the U.P. Basic Education Act, 1972 (for bravity hereinafter referred to as the Board of Basic Education), which is the body created, has invoked the extraordinary jurisdiction of this Court under Article 226 of the Constitution impeaching the verdict against it by the U.P. Public Services Tribunal (for bravity herein -after referred to as the Tribunal) constituted under the U.P. Public Services) (Tribunals) Act, 1976 (for bravity hereinafter referred to as the Act), in claim case No. 982/I/78 (Brij Raj Tripathi v. Basic Shiksha Parishad U.P., Allahabad through its Secretary and others) seeking the main relief for issuance of a writ in the nature of certiorari for quashing the same. Section 9 of the U.P. Basic Education Act, 1972 (for bravity hereinafter referred as the Basic Education Act) provided for the transfer of the services of every teacher, officer and other employees serving under a local body exclusively in connection with basic schools including any supervisory or inspecting staff immediately before the appointed day. The local body has been defined under the Basic Education Act to mean the Zila Parishad, Antarim Zila Parishad, Nagar Palika, Municipal Board, Town Areas Committee, or Notified Area Committee as the case may be. The basic education as defined to mean education up to the eight class imparted in schools other than high schools or intermediate colleges and the expression 'basic schools' shall be construed accordingly. Section 9 of the Basic Education Act reads as below: 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 with basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or others 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 Rules made by the State Government in that behalf). Provided that any service rendered under the local body by any such teacher, officer or 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 teacher, officer or other employee, who by notice in writing in that behalf to the State Govt. 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 local area at the same remuneration and on the same other terms and conditions of services as governed his 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 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) alongwith 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.
(2.) THE facts relevant to the controversy involved in the petition are: The Nagar Palika, Gorakhpur (for brevity hereinafter referred to as the Nagar Palika) established the Primary School in Village Bhairopur Mahadeo Jharkhande Tukra No. 1 Tola (for brevity hereinafter referred as to the Village) in the year 1954, wherein Sri Brij Raj Tripathi respondent No. 2 was appointed as a teacher in the year 1964 and since then he was continuously serving in the school. The U.P. Pay Commission in the year 1972 recommended for a revised pay scale for the teachers and other staff serving in the basic schools run by Nagar Palikas, which was accepted by the State Government and consequent thereupon all the members of staff were given the revised scale of pay except those serving in the schools run by Nagar Palika (Including respondent No. 2) inspite of the fact that with effect from,25 -7 -72 they were deemed to be the employees of the Board of Basic Education by statutory process. Sri Brij Raj Tripathi in order to enforce his legal right approached the Tribunal by means of claim petition No. 982/1/78 for declaration that his services stood transferred to the Board of Basic Education with effect from 25 -7 -72 and also for the grant of the revised scale of pay as recommended by the pay Commission together with difference of salary as arrears. The Nagar Palika, which was one of the opposite parties before the Tribunal in the claim petition admitted the fact of running of primary schools by it and also the fact of serving of claim -petitioner as teacher in the school since 1964. The contention of the Zila Basic Shiksha Adhikari that the school was run by Gaon Samaj did not find favour with. The Tribunal on account of admission by the Nagar Palika that the school was established and run by it, wherein the claim petitioner was serving as a teacher since 1964 and recorded a finding that the school was established in the year 1954 by the Nagar Palika and the administration whereof stood transferred to the Board of Basic Education and the claim petitioner being employee of the Board of Basic Education is entitled for the revised pay scale together with difference of arrears on that count. Liability was demarcated by the same that for the period subsequent to 25 -7 -72 the liability would be that of Board of Basic Education and for the period anterior thereto the liability would be that of Nagar Palika. The decision of the Tribunal dated 22 -1 -1982 whereby the Tribunal was allowed the claim petition granting following relief in favour of the claim petitioner, which is the subject -matter of challenge in the present petition: The petition is allowed. It is declared that the petitioner is an employee of the Parishad and from 25 -7 -72 he is entitled to the revised scale and all the arrears of pay are payable by the Parishad. Prior to 25/7 -72 the arrears of pay are payable by the Nagar Palika in accordance with the recommendations of the U.P. Pay Commission of the year 1972.
(3.) HEARD Sri Rahul Chaturvedi, advocate holding the brief of Sri V. B. Upadhyaya, Counsel for the petitioner, learned counsel for the respondent No. 2 and learned standing counsel.;