Sri Ram Ratan Sharma v. State of Bihar — 1975 DIGILAW 39 (PAT)

JUDGMENT This application by Ram Ratan Sharma under Article 226 of the Constitution of India is directed against the sanction of the State Government (respondent no. 1) that the petitioner as also the peons would get dearness allowance only at the rate of Rs. 7-50 paise per month since the 1st January 1969 to the 28th February 1971, which was communicated to the Principal, Haridas Seminary Higher Secondary School, Gaya, by the Sub-divisional Education-Officer, Gaya (Respondent no. 3) under his letter dated the 18th March 1971 (Annexure-5). 2. In order to appreciate the points involved in this case, it is necessary to state briefly the following facts: The petitioner was a permanent clerk of Hari Das Seminary Non-Government High School, Gaya. As stated by the petitioner in his application, in the year 1949, the Government of Bihar was pleased to prescribe the scales of pay of non-Government Secondary School teachers, clerks and the peons with effect from the 1st of April, 1949, through Memo no. 3852 dated the 27th May 1949 of the Deputy Secretary, Department of Education, Government of Bihar. In the year 1949, the Government of Bihar also prescribed and sanctioned Government dearness allowance to be paid to the teachers of the Non-Government Secondary Schools of Bihar including the clerks. The dearness allowance was sanctioned to the Clerks in the rate as available to the teachers treating the two as similarly situated for the purposes of sanction of dearness allowance. A true copy of the said Government decision is Annexure-1 to the writ application. The petitioner also stated in paragraph 4 of the application that he drew the Government dearness allowance from April 1949 to March 1965 at the same rate as was drawn by the teachers of his school During the aforesaid period there were variations in the rate of the same, and whenever the rate was enhanced for the teachers, it was similarly enhanced for clerks as well, and, accordingly the petitioner got Government dearness allowance always at par with the teachers of the school. In the other part of his application, the petitioner stated that in 1965, a new pay scale was introduced by the state, and the Government dearness allowance was merged in pay with effect from the 1st of April 1965. At that time, the petitioner was receiving the Government dearness allowance at the rate of Rs. In the other part of his application, the petitioner stated that in 1965, a new pay scale was introduced by the state, and the Government dearness allowance was merged in pay with effect from the 1st of April 1965. At that time, the petitioner was receiving the Government dearness allowance at the rate of Rs. 30/- per month like all teachers of his school. When the Government dearness allowance merged in the pay with effect from the 1st of April 1965 the same was discontinued in respect of both the teachers and the petitioner. The State Government has declared that it had introduced the said pay scale with a view to bring parity in the scales of the Government and non-Government secondary School teachers and other employees of the State. The pay scale was revised by an order dated the 24th March 1967 with effect from the 1st of April 1966. On the 4th May 1968, considering the recommendation of the Kothari commission, the State Government was pleased to upgrade the existing pay scales for teachers and clerks employed in the non-government and State subsidised High Schools with effect from the 1st of April 1968, as would appear from Resolution no. II/P1-05/68-E. 1438 passed by the Education Department, Government of Bihar, and the petitioner's pay scale was also revised accordingly. In paragraph 8 of the application, the petitioner further stated that the Government of Bihar sanctioned Government dearness allowance to the teachers of the Non-Government Secondary Schools from the 1st January 1969, when it sanctioned a rise in the cost of living allowance of its non-gazetted employees again to maintain parity with the teachers of the Government schools, most of whom come in the category of the non-gazetted employees. A true copy of the said decision of the Government which was communicated through the letter is Annexure-2. The said Annexure-2 does not mention regarding the scale of dearness al1owance of the Clerk. It mentions only with regard to the teachers. A true copy of the said decision of the Government which was communicated through the letter is Annexure-2. The said Annexure-2 does not mention regarding the scale of dearness al1owance of the Clerk. It mentions only with regard to the teachers. The petitioners also stated in paragraph 9 of the application that on the 16th June 1970, a meeting was held in the chamber of Shri Daroga Prasad Roy (the then Chief Minister) with the representatives of the Bihar Secondary School Teachers Association and officials of the State Government in regard to sanction of dearness allowance to the clerks and peons working in the Secondary Schools, and with regard to several other items. In the said meeting, it is alleged the state Government admitted the omission committed on its part in not sanctioning the dearness allowance to the clerks and the peons working in each school. An extract of the minutes of the said meeting is enclosed as Annexure-3. The petitioner also stated in paragraph 10 of his application that on the 31st July 1970, that an announcement was made by Mr. Nitishwar Prasad Sinha (the then State Education Minister) at a press conference in the New Secretariat about the decision of the Government that the clerks and the peons employed in Secondary Schools would receive dearness allowance at the rate of Rs. 21/- and Rs. 7•50 paise per month respectively, a report of which was published in the Searchlight, a local daily news paper, on the 1st August 1970. A true copy of the said report is Annexure-4. On the 2nd April 1971, the petitioner received from respondent no. 3 letter communicating to the Principal of the said school regarding sanction of only Rs. 7-50 paise per month as dearness allowance to the clerks with effect from the 1st January 1969, as detailed in the letter (Annexure-5) mentioned above. 3. Aggrieved by the sanction communicated through the said letter, the petitioner came up to this Court and obtained a Rule of this Court on the 17th September 1971. In the application he has prayed for quashing the impugned order (Annexure-5) and for a writ of mandamus commanding the respondents to treat the petitioner at par with the teachers of the non-Government High Schools. In the application he has prayed for quashing the impugned order (Annexure-5) and for a writ of mandamus commanding the respondents to treat the petitioner at par with the teachers of the non-Government High Schools. When the application of the petitioner was listed for hearing on the 26th September 1972, it was prayed on behalf of the State to adjourn the case to enable the state to file a counter-affidavit. As prayed, it was adjourned to 24th October 1972. Due to some reason or the other, the case was not put up for disposal till the 30th January 1975 and the same was heard in part. Therefore, it was again listed for hearing on the 31st January 1975. Even on the date no counter affidavit was filed on behalf of the State. However, as prayed on behalf of the State, the case was adjourned for further hearing on the 11th February 1975. On that date when the case was taken up for hearing, counter-affidavit on behalf of respondent nos. 1 to 3 was filed along with a supplementary affidavit wherein it is stated on behalf of respondent nos. 1 to 3 in paragraph 2 that the counter-affidavit could not be filed in time as the file containing the writ petition was missing in the Education Department. It was only on the 31st January 1975 that the Department received communication from the office of the Advocate General about the non-filing of the counter-affidavit, on receipt of the said communication, the deponent was deputed to bring the copy of the writ petition from the office of the Advocate General. In paragraph 3 it is stated that the delay was not intentional and as such the counter-affidavit may be taken into consideration while hearing the case. A reply to the said counter-affidavit has been filed on the same date on behalf of the petitioner inter alia making submission that on the facts and circumstances of the instant case, the counter-affidavit filed on behalf of respondents nos. 1 to 3 should be ignored and delay in filing the counter-affidavit should not be condoned. In our opinion, on the facts and circumstances mentioned above the counter affidavit filed on behalf of respondents nos. 1 to 3 should not be looked into. 4. Learned Counsel for the petitioner has assailed the impugned sanction contained in Annexure-5. 1 to 3 should be ignored and delay in filing the counter-affidavit should not be condoned. In our opinion, on the facts and circumstances mentioned above the counter affidavit filed on behalf of respondents nos. 1 to 3 should not be looked into. 4. Learned Counsel for the petitioner has assailed the impugned sanction contained in Annexure-5. According to him the petitioner ought to have been given the dearness allowance equal to the teachers of the said School. He submitted that on the basis of the assurance given to the petitioner under Annexure 3 and 4, the State Government was bound to honour the assurance made under the above Annexure. In order to find support his contentions, he has relied on decisions in the cases of the Union of India and others V. Om Prakash Etc. AIR 1968 S.C. 718 , Century Spinning & Manufacturing Co. Ltd and another V. The Ulhasnagar Municipal Council and another AIR 1071 S.C. 1021 and the Union of India V. K. P. Joseph and others AIR 1975 S.C. 303. In our opinion on the basis of Annexures 3 and 4 in the instant case, no mandamus can be issued on the respondents to fulfill their obligations mentioned under Annexures 3 and 4. 5. Learned Counsel for the petitioner, has, however, contended that on the very face of it one finds that under the impugned sanction an arbitrary standard has been applied on behalf of respondent no. 1 equating the dearness allowance of the petitioner with that of the peons although the scale of salary of the petitioner is higher than that of the peons. According to the petitioner, the scale of salary for the petitioner and other clerks of the school is Rs. l203-150/- whereas the scale of salary of the peons is Rs 75-3/2-105. Besides, the learned counsel for the petitioner submitted that the status of the clerks is also higher than that of the peons in the society, and therefore, the impugned sanction is violative of Articles 14 and l6 of the Constitution of India. In order to find support to his contention, he has relied on the case of Satwant Singh Sawhney V. D. Ramarathnam Assistant Passport Officer, New Delhi and others AIR 1967 S. C. 1836. In that case a passport was refused to an individual. In order to find support to his contention, he has relied on the case of Satwant Singh Sawhney V. D. Ramarathnam Assistant Passport Officer, New Delhi and others AIR 1967 S. C. 1836. In that case a passport was refused to an individual. Their Lordships of the Supreme Court observed at page 1845 to this effect :- “..... .An executive arbitrariness can prevent one from doing so and permit another to travel merely for pleasure. While in the case of enacted law one knows where he stands, in the case of unchannelled arbitrary discretion, discrimination is writ large on the face of it Such a discretion patently violates the doctrine of equality, for the difference in the treatment of persons rests solely on the arbitrary selection of the executive. The argument that the said discretionary power of the State is a political or a diplomatic one does not make it any the less an executive power. We, therefore, hold that the order refusing to issue the passport to the petitioner offends Art. 14 of the Constitution.” The learned Counsel has also relied on a later decision of the Supreme Court in the case of E. P. Royappa V. State of Tamil Nadu and another AIR 1974 S.C. 555 the relevant portion of which is to be found at page 583, which reads thus : “......Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality.” In our opinion this part of the submission of the learned Counsel for the petitioner is well founded. Apparently it appears on reference to Annexure-5 that the sanction accorded for preparation of dearness allowance to the petitioner is arbitrary as the same amount of dearness allowance was fixed for him as well as the peons. Therefore, we quash the impugned sanction contained in Annexure-5 only so far as it affects the petitioner and we direct the respondents to reconsider the sanction in the light of the observations made above. 6. In the result, the application is allowed and the sanction as contained in Annexurs-5 is quashed to the extent mentioned above. In the circumstances there will be no order as costs. 6. In the result, the application is allowed and the sanction as contained in Annexurs-5 is quashed to the extent mentioned above. In the circumstances there will be no order as costs. Application allowed.