Ashok Bhushan - (1.) -Heard Sri M. A. Qadeer, learned counsel for the petitioner. Learned standing counsel has appeared for respondent No. 4. The statement has been made by Smt. Puspa Singh holding brief of Sri K. S. Shukla counsel appearing for the respondent No. 1 that Sri Shukla has no further instructions to appear on behalf of the respondent No. 1.
(2.) BY this writ petition the petitioner has prayed for certiorari quashing the order dated 17.11.1990 passed by the respondent No. 1. An amendment has also been sought commanding the respondents not to interfere in the functioning of the petitioner as Assistant Teacher Urdu in Junior High School Sadar Bazar, Kanpur Nagar, Kanpur. BY an amendment the petitioner has been permitted to add the following three reliefs in the writ petition : "(e) to issue a writ, order or direction in the nature of mandamus commanding the respondents to treat the petitioner as Assistant Teacher, Junior High School, w.e.f. 25.3.1975 and to pay balance of her salary in said grade revised from time to time. (f) to issue a writ, order or direction in the nature of mandamus commanding the respondents to regularise the petitioner as Assistant Teacher in Junior High School grade and to give her all consequential benefits w.e.f. 22.3.1985 from which date all other teachers have been given. (g) to issue a writ, order or direction in the nature of mandamus commanding the respondents to give the charge of Head Mistress of Kanya Junior High School, Sadar Bazar, Kanpur." Brief facts of the case necessary for deciding the writ petition are : The petitioner was appointed as Assistant Teacher Urdu in Junior Basic School, Chakeri, Nagar Maha Palika, Kanpur by order of the Basic Shiksha Adhikari, dated 9.1.1974. By order dated 22.3.1976, the petitioner was transferred to Junior Basic School, Sadar Bazar, Kanpur Nagar, Kanpur. The order further provided that the petitioner be paid salary of primary teacher. Petitioner joined as Assistant Teacher in Junior Girls School, Sadar Bazar on 25.3.1975. The petitioner was confirmed by order dated 4.4.1981 on the post of Assistant Teacher Urdu. During service the petitioner was sent for B.T.C. training in 1977. Petitioner also passed Intermediate with Urdu in the year 1976-1977. The State Government issued a Government order dated 15.10.1984 creating 5000 posts of Assistant Teacher Urdu in Senior Basic School/Junior High School run by the U. P. Basic Education Board. The Government order noticed that Assistant Teacher in Urdu are appointed in Half a Million Job Scheme in Senior Basic School. It was decided that those teachers be given appointment against newly created posts provided they have passed Intermediate Examination with Urdu and are trained. The Government order contemplated that it be ensured that in the urban and rural areas of Senior Basic Schools not more than one teacher be appointed in pursuance of the Government order dated 15.10.1984. The Director of Education issued a letter to the Chairman Basic Shiksha Parishad dated 20.10.1984/ 13.11.1984 provided for methodology for making appointment on newly created 5,000 posts of Assistant Teacher Urdu. The order noted that earlier in half a Million Job Scheme on 1,027 posts the Urdu teachers were appointed in the pay scale of primary teachers, thus the teachers be given appointment as Assistant Teacher in Senior Basic School. It was further provided that thereafter after deducting the post equivalent to working Assistant Teacher on the rest of the post appointment be made in accordance with the U. P. Basic Education Teachers Service Rules, 1981. The Basic Education Officer passed an order on 24.1.1985 appointing/absorving certain teachers in Junior Basic Schools in the pay scale of Rs. 450-720. Petitioner by an order dated 5.12.1985 passed by the Education Superintendent, was attached with Primary Pathshala, Benajhawar, Kanpur. Petitioner submitted representation for giving herself the benefit of the Government order dated 15.10.1984. Petitioner claimed that petitioner is being denied benefit of the Government order dated 15.10.1984. Representation also stated that the service records of the petitioner were called for by the District Basic Education Officer by several letters including the letter dated 21.7.1987 but the same was not submitted due to which petitioner has been denied the benefit. Petitioner has given an application that the petitioner be returned to Junior High School, Sadar Bazar. An order dated 13.11.1990 was passed cancelling the attachment of the petitioner with Primary Pathshala, Benajhawar and re-appointing the petitioner to Junior High School, Sadar Bazar. The order, however, stated that the petitioner shall be paid salary of primary grade. Petitioner was relieved and joined in Junior High School, Sadar Bazar on 14.11.1990. By an order dated 17.11.1990 the earlier order dated 13.11.1990 was cancelled on the ground that the original institution of the petitioner is not Kanya Junior High School, Sadar Bazar. This writ petition was filed by the petitioner praying for quashing the order dated 17.11.1990. This Court granted an interim order on 4.12.1990 staying the order dated 17.11.1990 in consequence of which the petitioner is working in Kanya Junior High School, Sadar Bazar, Kanpur Nagar. Learned counsel for the petitioner contended that the petitioner having joined the Kanya Junior High School, Sadar Bazar, Kanpur Nagar on 25.3.1975 and is working since then in Kanya Junior High School, Sadar Bazar, is entitled for salary of Assistant Teacher Junior High School with effect from 25.3.1975. The alternate submission of the learned counsel for the petitioner is that the petitioner is entitled for grade of Assistant Teacher Junior High School with effect from 22.3.1985 from which date all other teachers have been given the Junior High School grade.
(3.) A counter-affidavit in the writ petition was filed on behalf of the respondent No. 1 on 4.5.1992 subsequently the petitioner filed a supplementary-affidavit alongwith the amendment application on 23.2.2005. The amendment application was allowed by the Court on 28.2.2005. By supplementary-affidavit petitioner brought on the record the copy of the Government order dated 15.10.1984, a copy of the representation submitted by the petitioner for getting the benefit of Junior High School grade, the letter of the Basic Shiksha Adhikari and certain other materials. This Court allowed time to the respondents to file supplementary - counter - affidavit which was filed on 27.3.2006. The supplementary rejoinder-affidavit was also filed. The writ petition was heard on 16.5.2006 and following order was passed on 16.5.2006 : "Heard Sri M. A. Qadeer learned counsel for the petitioner. The submission of Sri Qadeer is that petitioner is entitled to be given the grade of Assistant Teacher Junior High School in view of the G.O. dated 15.10.1984 by which five thousand posts of Assistant Teachers were created and those persons who were already working in the primary section under the Half Million Job Scheme and teaching Urdu were required to be adjusted. He further submits that all primary teachers except the petitioner have been given the grade of Junior High School but the petitioner has been denied the same. Sri K. S. Shukla, learned counsel for the respondents prayed for time to obtain instructions as to whether the persons who where junior to the petitioner as Assistant Teacher in primary school have been given the benefit of Junior High School and from which date Sri Shukla may also obtain instructions as to from which date the petitioner's claim is entitled to be considered for the grade of Junior High School. List for further hearing on 26th May, 2006." After the order dated 16.5.2006 although time was taken by the learned counsel appearing for the respondent No. 1 for obtaining instructions but the Court has not been informed about any instructions with regard to the issue as noticed in the order dated 16.5.2006. In the counter-affidavit filed by the respondent No. 1 this fact was admitted that the petitioner was appointed as Assistant Teacher Urdu in Half Million Job Scheme. The counter-affidavit stated that such appointee could be posted to Junior High School for teaching Urdu but were entitled under the Scheme the grade applicable to the Assistant Teacher in Junior Basic School. It is relevant to note that the averments made in paragraph 6 of the counter-affidavit which are to the following effect : "6. That in reply to the averments made in paras 8 and 9 of the supplementary-affidavit it is stated that all Assistant Teachers of Junior Basic School were confirmed as such together. At that time the petitioner was only attached to Junior High School as an Assistant Teacher of Junior Basic School." ;