Employees discharging duties of a higher post are entitled to salary for that position, barring statutory restrictions, and salary arrears are limited to three years from the filing of the writ petition.

JUDGMENT :

1. Heard Sri Kushmondeya Shahi, learned counsel for the appellants, Sri V.K. Singh, Senior Advocate, assisted by Sri Alok Kumar Gupta, Sri Sudheer Rana, Sri Kamal Kumar Kesharwani, Sri Man Bahadur Singh, Sri Agnihotri Kumar Tripathi, Sri Jitendra Kumar Yadav, Sri Anurag Shukla and Sri Pankaj Kumar Ojha, learned counsel for the respondent-writ petitioner.

2. This bunch of special appeal is preferred by the U.P. Basic Education Board through its Secretary challenging an order passedby learned Single Judge granting salary of the post of headmaster to the writ petitioners who are working as such since long. In the leading case, the writ petitioner has been working as headmaster since 2014, yet, the salary for the post of headmaster has not been paid to him. Under the orders of learned Single Judge, such person has been held entitled to the salary for the higher post on which he is allowed to function. In other cases, the situation is more or less similar and those petitions have been disposed of in terms of order passed by this Court in the leading case of Tripurari Dubey and another Versus State of U.P. and others passed in Writ-A No. 18228 of 2022. Learned Single Judge has returned a finding that the writ petitioner has been discharging the duties of headmaster since 31.05.2014 and is otherwise qualified for appointment to the post of headmaster. Reliance is placed upon a Full Bench decision of this Court in Dr. Jai Prakash Narayan Singh Vs. State of U.P. , in Civil Misc. Writ Petition No. 23627 of 2014, decided on 26^th September 2014, 2014 (8) ADJ 617 as well as the judgment of Hon’ble Supreme Court in Arindam Chattopadhyay and others vs. State of West Bengal and others , (2013) 4 SCC 152 and the judgment of this Court passed in Writ (A) No. 3863 of 2018 ( Smt. Raj Kishori Kushwaha vs. State of U.P. and others decided on 07.05.2014.

3. Before learned Single Judge the claim of petitioner was resisted by the appellants relying upon the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh Vs. R.D. Sharma and another , (2022) 2 Scale 398 . Having examined the respective claim of the parties, learned Single Judge has allowed the writ petition and a mandamus has been issued to pay the salary for the post of head master alongwith arrears to the writ petitioner from 31.05.2014.

4. The judgement of learned Single Judge is challenged on following grounds: (i) that the determination of post of headmaster in the primary school in question is regulated by the provisions of RIGHT TO EDUCATION ACT , 2009 (hereinafter referred to as ‘RTE Act 2009’) and by virtue of section 25 read with the schedule, the strength of teachers required in the institution is prescribed. It is the case of the appellants that in most of the primary schools the strength of the students is below 150 and in junior high schools the strength of students is below 100 and, therefore, there exists no post of headmaster and, therefore, the question of payment of salary for the post of headmaster does not arise. A chart in respect of two blocks of District Gorakhpur has been placed on record in order to submit that in most of the institutions there is no requirement of a post of headmaster. It is, therefore, submitted that the direction to pay the salary for the post of headmaster is impermissible; (ii) that the qualification of teachers in primary and junior schools is prescribed by the notification issued by NCTE. An amendment was introduced in 2011 incorporating Section 12A in the NCTE