BASIC SHIKSHA PARISHAD AND ANR.versusSMT. SUGNA DEVI AND ORS.

             BASIC SHIKSHA PARISHAD AND ANR.                               A
                                  v.
                  SMT. SUGNA DEVI AND ORS.

                        DECEMBER 12, 2003

           [S. RAJENDRA BABU AND RUMA PAL, JJ.]                            B

    Service Law :

     U.P. Basic Education Act, 1972 :

     Basic Education-Services ofteacher-Termination of-Without serv- C
ing termination order-Validity of-Held : The services of a validly
appointed teacher could not be terminated without serving the termination
order-Termination set aside.

     Limitation Act, 1963 :

     Section 22-Continuing breach and torts-Cause of action-Salary
recurring every mm1th-Held : Cause of action was continuing"""'."-Hence,
question of limitation did not arise.

     Respondent No. 1 was appointed as an Assistant Teacher by the E
then President of the District Board. Respondent No. 1 was on long
leave, consequent to her prolonged illness, and after she rejoined, her
services were terminated without any termination order. The repre-
sentations made by respondent No. 1 were of no avail. In the meanwhile
Basic Education was taken over by the Basic Shiksha Parishad from F
Zila Parishad vide U.P. Basic Education Act, 1972.

     Respondent No. 1 filed a claim before the State Public Services
Tribunal, which was rejected on the grounds that the claim was barred
by limitation and that respondent No. 1 could not prove that she was
validly appointed by the President District Board.                    G
     The High Court allowed the writ petition filed by respondent No.
1 holding that she was working as a teacher, that as the salary was
recurring every month the cause of action was continuing and,
therefore, the claim wan not barred by limitation. Hence the appeal. H
                                  759
     760               SUPREME COURT REPORTS [2003) SUJ>P. 6 S.C.R.

A          Dismissing the appeal, the ·court

          ·HELD : I. The competent authority duly appointed respondent
     No. 1 as an assistant teacher and she was prevented from joining, as
     a ·teacher after leave. Once no order of •termination or ·dismissal is
B    produced, the services of-respondent No. l has to be treated as stood
     transforred ·to the Basic Education Board by operation of law. In that
     event, she has to be treated as continuing in service and salary was
     accruing every month that accorded her a continuing cause of action.
     Therefore, the question of limitation also will •not arise iin this case.
                                                                   (762-G-H)
c
         1CIVIL APPELLATE JURISDICTI0N : •Civil Appeal No. 3957 of
     1998.

          From the Judgment and Order dated 29.7.97 of the Allahabad High
D    Cuort in W.P. No. 8585 of I 986.

          ·subodh Markandeya, 'Mrs. •Chitra Markandeya and Ms. -Feroza Bano
     fortthe Appellants.

           Manoj Swarup, Ms. Lalita Kohli and R.N. ·Pandey for the Respond-


           ·The IJudgment•ofthe C0urt 1was.delivered by

         lflWJE'.NDRJ\ !BABU, rr. : Whether the Respondent No. I - Smt.
     Sugna-Devi-could be.considered asa teacher.employed by the Petitioner
 F   No I - Basic Shiksha. Parishad, Allahabad (UP).js the ·short question for
     consideration in this matter.

         Respondent No. !•maintained the,case that she was appointed as an
    Assistant 'Teacher in •Kanya Pathshala,,·Mallawan in district Gonda on
'G 22/03/1966 by. the then: President of, District· Board Gonda.. Subsequently
    she was transferred to Paraspur. Later she was transferred back to
   'Mallawan. tConsequent to her prolonged illness •she·took .leaveibetween
   'July 1970 and 14/05/1971 and thereafter between July ·1971 ·and
    29/12/1971. 'When she returned on J0/12/1971 'the Headmistress told•her
'H that,she·was'terminated from services. But·she was not served·with ·any
      BASIC SHIKSHA PARISHAD v. SUGNA DEVI [RAJENDRA BABU, J.]       761

termination orders. She was told by the Headmistress to approach the Zita A
Parishad to seek for a transfer. Accordingly she placed representation
before the Chairman, Zila Parishad for transferring her to another school.
Several follow up reminders for this representation was sent. By the time
vide UP Act No. 34/1927 the Basic Education was taken over by the Basic
Shiksha Parishad from Zila Parishad. Thereafter Respondent No. l B
approached District Basic Education Officer, Secretary Basic Shiksha
Parishad and even the Minister and made several representations. Thereafter,
she filed a Claim Petition before the UP Public Services Tribunal.

      Basic Shiksha Parishad maintained the stand that she was never been
their employee and since she could not produce any documents that could    c
authenticate the factum of her service the case has to be rejected as a
concocted one. Learned Tribunal found that since she could not prove that
the President of District Board Gonda validly appointed her or she was
working as a teacher the Claim Petition was rejected both on grounds of
prolonged delay and on merits.                                            D
      She preferred a Writ Petition challenging the Tribunal's order before
the High Court. Along with the Writ Petition she annexed all the documents
that were relied upon by her before the Tribunal. By the time she also filed_
an application before the Basic Shiksha Adhikari to furnish her copies of E
all the relevai:it documents such as salary I pay bills, vouchers etc. Though
the Basic Shiksha Adhikari had directed to furnish all the documents
 required by her, the Record In-Charge refused to give it to her under one
pretext or another. At the outset the High Court noted that these documents
were not made available either to the Tribunal or to the High Court.
                                                                           ·F
      Primarily the High Court relied upon the documents filed by Re-
spondent No 1 such as - the document that proves the payment of Rs. 80
as arrears, her transfer orders, joining reports, letter of Adhyaksha calling
upon her to present her testimonials etc. and found that she was working
as a teacher. High Court also noted that that the Zila Parishad has not G
disputed Sugna Devi's case nor was there any valid reason on record that
shows that she was not working as a teacher. Another pertinent finding of
the High Court is that once the name of a staff was found in the list, the
Basic Education Board was under legal obligation to give reasons or
explanation as to under what circumstances or for what reasons the services H
    762                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A of that staff was not treated fo have been transferred under the mandatory
    provisions of Section 9(1) of the Act. This was not complied in the case
    of Respondent No 1. Hence her service was considered as transferred to
    the Basic Shiksha Parishad. For these reasons the High Court set aside the
    findings of the Learned Tribunal and held that she had continued to be in
B   service. Due to the fact that the salary was recurring every month the cause
    of action was continu.ing. Therefore the finding of the Tribunal on account
    of bar of limitation was also held to be erroneous. Considering all these
    facts· the High Court ruled that Sugna Devi is entitled to salary for three
    preceding years before the ·date of superannuation to be computed on the
C   basis ofrevised pay scales as existing at the time of her retirement. By this
    finding the Writ petition was allowed. This judgment is impugned before
    us.

          The only point for consideration is whether the Respondent No. 1 was
    in service or not on the relevant date. The Tribunal only on the basis that
D   she was not able to produce the appointment letter ruled that she was never
    in service. On the other hand the High Court relied on documents like
    transfer orders and joining reports found that she was validly in service.
    There is also positive evidence to the effect that she was paid arrears during
    the relevant period. All this ·goes to show that the President of District
E   Board appointed her as a teacher and she was working as one. Therefore
    tt:e finding of the TribWlal is difficult to subscribe. We uphold the view
    adopted by the High Court and hold that Respondent No. 1 was appointed
    as a teacher. By virtue of the enactment of UP Basic Education Act, 1972
    her service was transferred to the Basic Shiksha Parishad. Since her
F   services were never terminated, why her name was missing form the list
    of transferred employees has to be explained by the Appellant No. 1. In
    contrast, Appellant No. 1 strongly maintained the stand that she was never
    in service. In the facts and circumstances of this case we find it difficul
    to accept this contention. Failing which, the case of the Respondent
    No. 1 that the competent authority duly appointed her as an assistant
G   teacher and she was prevented from joining, as a teacher after leave has
    to be accepted. Once no order of termination or dismissal is produced, her
    service has to be treated as stood transferred to the Basic Education Board
    by operation of law. In that event she has to b; treated as continuing in
    service and salary was accruing every month that accorded her a continuing
H   cause of action: Therefore the question of limitation also won't arise in this
             BASIC SHIKSHA PARISHAD v. SUGNA DEVI [RAJENDRA BABU, J.]   763

    case. In this context the view adopted by th~ High Court is perfectly A
    justified. We don't propose to interfere. The view of the High Court that
    Respond~nt No. l is entitled to compensation equivalent to the salary for
    the three preceding years before the date of superannuation on the basis
    of revised pay is also quite reasonable.                           .

         Accordingly we dismiss this Petition. The High Court order shall be
                                                                               B
    given effect to within a period of three months from today.

    v.s.s.                                                Appeal dismissed.




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