Executive Circular Can't Override Statutory Right Of Primary School Teachers To Salary: Allahabad High Court

The Allahabad High Court has held that Clause 10 of the Circular dated 03.05.1982 issued by the Director of Education (Basic), U.P., being only an executive instruction, cannot cut down the right to salary conferred by Section 10 of the U.P. Junior High Schools (Payment of Salaries of Teachers and other Employees) Act, 1978 on teachers of the primary section of an institution running Classes I to VIII.

Section 10 of the 1978 Act makes the State Government liable for payment of salaries of teachers and employees of every institution due in respect of any period after the appointed day. Clause 10 of the Circular dated 03.05.1982 confined that benefit to teachers and other employees working in Classes VI to VIII of the listed schools and expressly excluded those working in an attached primary section, Classes I to V.

The bench of Justice Mahesh Chandra Tripathi and Justice Kunal Ravi Singh held,

“… this clause is only an executive instruction issued by the Director of Education for implementing the grant-in-aid scheme of 1982. It cannot limit or take away a right created by Section 10 of the 1978 Act. Once the Supreme Court has interpreted the scope of Section 10, that interpretation is binding. An executive circular cannot override or narrow the meaning of a statutory provision as explained by the Supreme Court.”

Appellant was appointed as an Assistant Teacher in the primary section of Smt. Ram Daiyee Balika Junior High School, Dariya Dayalpur, Azamgarh. The institution had been recognized as a Primary School in 1974 and was recognized as a Junior High School with effect from July 1^st, 1977. It was brought under the grant-in-aid scheme in 1980, whereafter the District Basic Education Officer approved the appellant's appointment in November 1980 and placed his name on the approved list for payment of salary. He drew salary from the State Exchequer till October 1981, when payment was stopped.

Two other teachers of the same institution obtained orders from the High Court directing payment of their salary. The State's special leave petition against the first of those judgments was dismissed. The appellant's own representation was rejected on April 12^th 1999, his writ petition was dismissed in 2003, and in 2012 a Division Bench remitted the matter for fresh consideration. The District Basic Education Officer again rejected the claim on April 11^th 2013, relying on Clause 10 of the Circular.

The Single Judge, in writ jurisdiction, upheld that order holding that Clause 10 restricted the grant-in-aid benefit to Classes VI to VIII. It held that the appellant could not challenge Clause 10 after more than 31 years, and that salary paid to another teacher of the institution under court orders could not be treated as a precedent.

The appellant filed an intra-court appeal, arguing that the Circular could not operate on an approval already granted and that the question stood answered by the Constitution Bench in State of U.P. v. Pawan Kumar Divedi.

The Court noted that the institution had functioned as a single unit running Classes I to VIII under one management. It held that, therefore, the institution fell within the first of the three categories of recognized Junior High Schools identified by the Supreme Court in the aforesaid case, in respect of which Section 10 was held to apply without difficulty. It noted that the same view had been taken in respect of this very institution by a Single Judge in 1993, a judgment that attained finality when the State's special leave petition was dismissed.

On the finding of delay, the Court held,

“This reasoning would have been correct if the appellant had challenged the validity of Clause 10 itself. However, that is not the appellant's case. The appellant has consistently maintained that he is entitled to salary under Section 10 of the 1978 Act, irrespective of Clause 10.”

In Directorate of Revenue Intelligence v. Raj Kumar Arora, the Supreme Court held that a Supreme Court judgment interpreting a statute operates retrospectively and governs proceedings that were pending when it was delivered. It clarified that the rule does not reopen matters that had already attained finality under the earlier view.

Observing that law applicable on the date shall be applied on the appeal before the Court, it held,

“It is a settled principle that when the Supreme Court interprets a statutory provision, it explains what the law has always meant. It does not create a new law from the date of its judgment.”

The Court further held that the amendment brought in by Uttar Pradesh Junior High Schools (Payment of Salaries of Teachers and Other Employees) (Amendment) Act, 2018, which defines “Junior High School” as an institution imparting education from Classes VI to VIII, is a substantive change in the law operating only from the date it came into force, and does not affect the claim for the earlier period.

The Court noted that the impugned order and the judgment of the learned Single Judge had both preceded the Constitution Bench decision. It observed,

“the District Basic Education Officer and the learned Single Judge cannot be blamed for relying on Clause 10 of the Circular dated 03.05.1982, as that was the legal position understood at that time. This judgment should not be taken as criticism of their approach.”

Accordingly, the Court remitted the matter to the District Basic Education Officer, Azamgarh, to verify from the service records and attendance registers the period during which the appellant actually taught in the institution and whether and when his service came to an end. If he is found to have worked, he is to be paid arrears of salary for the verified period from November 1981 up to the earlier of the commencement of Act of 2018 or the date his service ended, the exercise to be completed within three months.

The special appeal was disposed of.

Case Title: Surendra Sharma v. State of U.P. and 3 others

Counsel for Appellant(s): J.p. Singh

Counsel for Respondent(s): Shashi Prakash Singh, B.p. Singh

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