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2002 DIGILAW 1455 (PAT)

Yogendra Jha v. State of Bihar

2002-12-20

R.S.GARG, S.N.JHA

body2002
JUDGEMENT R.S. GARG,J.: - By this petition under Article 226 of the Constitution of India, the petitioners, in all 25 in number, have challenged paragraphs 18 and 19 contained in Appendix I annexed to letter dated 7th August, 1989 issued by Human Resources Development Department, Govt. of Bihar (Annexure - 1 ) 2. The petitioners are teachers, imparting education in different constituent colleges on different posts under the Lalit Narain Mithila University. According to the petitioners, the University Grants Commission framed a policy for refixation of salary of teachers and their promotion to higher posts and communicated the said policy to the Govt. of India. Human Resources Development Department. The Govt. of India agreed with the policy of the University Grant Commission and issued letter beating no. F1 - 21/87 U.1 dated 17.6.1987 requiring the State Govt. to consider the question of implementation of the revised pay scale for the University and College teachers of the State as recommended by the University Grants Commission as a composite scheme as envisaged in the letter, Video Annexure - 1 the Human Resources Development Department through the Additional Commissioner - cum - Special Secretary communicated the decision of the State Govt. to the Registrars of all the Universities in Bihar informing them that the Government had decided to introduce the revised scales of pay for the teachers of the Universities and Degree Colleges etc. as recommended by the University Grants Commission with effect from 1.1.1986. Different pay scales were provided in the said resolution/communication, 3. The petitioners say that paragraphs 18 and 19 of the scheme are illegal, arbitrary and malafide. According to them the same is not based on any reasonable differentia. They also say that members of FUTAB and FUSTAB raised objections in their meetings. They have also said that the cut - off date i.e. 1.3.1989 had been fixed arbitrarily and the same is likely to create two categories of teachers. According to them paragraphs 18 and 19 deserve to be quashed. 4. They also say that members of FUTAB and FUSTAB raised objections in their meetings. They have also said that the cut - off date i.e. 1.3.1989 had been fixed arbitrarily and the same is likely to create two categories of teachers. According to them paragraphs 18 and 19 deserve to be quashed. 4. In reply to what has been contended in the writ application it is contended that under Annexure - 1 the promotion made or due under any existing scheme before 1.3.1989 will not be reopened, however, it a teachers opts to continue to be governed by the provisions of the existing promotion scheme, they may be entitled to the designations envisaged for various categories of teachers in those scheme. It is also contended that no body could force any teacher to opt for not being governed by the old/existing scheme. According to them, the existing promotion scheme have been stopped under the U.G.C. pay scale only after 1.3.1989, but teachers have been given options to continue in the existing promotion scheme. It is also said in the counter that there is no discrimination amongst the teachers but a choice is given to them for being governed by the existing/new scheme. 5. Learned counsel for the petitioners submitted before us that the scheme as contained in Annexure - 1 if considered in its true perspective, it would clearly appear that paragraphs 18 and 19 of the scheme are against the interest of the teachers and in fact leaves no option to them. It is also contended that fixation of cut - off date as 1.3.1989 is imaginary and has been arbitrarily fixed. It is submitted that the date has no nexus with the promotions or the scheme therefore, and as the date is likely to create two categories amongst the teachers, the date should also be refixed or the State authorities be required to refix the date. On the other hand learned counsel for the respondents contended that a bare and fair perusal of paragraph 9 of the letter dated 7.8.1989 so also paragraph 18 and 19 of the scheme would make it clear that nobody is thrusting its - will/wishes upon the aggrieved teachers. On the other hand learned counsel for the respondents contended that a bare and fair perusal of paragraph 9 of the letter dated 7.8.1989 so also paragraph 18 and 19 of the scheme would make it clear that nobody is thrusting its - will/wishes upon the aggrieved teachers. According to them, teacher serving on a sanctioned post could exercise the option in accordance with paragraph 20 of Appendix I within 90 days from the date of issuance of letter/order dated 7.8.1989 in the proforma given in Annexure - 3 to Annexure - 1. It is also contended that in case of exercise of option, the teachers would be governed by the existing promotion schemes. It is also said that in a case of giving benefits some date is to be fixed. In the present letter by no stretch of imagination it can be said that the said fixed date i.e.1.3.1989 is arbitrary or has been fixed to provide benefit to particular persons or with any ulterior motive. 6. The letter dated 7.8.1989 (Annexure - 1) is issued by the Additional Commissioner-cum - Spl. Secretary, Human Resources Development Department, Bihar. It informs the Registrars of all the Universities that the Govt. of India vide their letter no. F1 - 21/87 U1 dated 17.6.1987 and 22.7.1988 requested the State Govt. the consider the question of implementation of revised pay scales. The letter further says that the State Govt. have decided to introduce the revised scales of pay for teachers of the Universities and Degree Colleges and also for Vice - Chancellors of the Universities with effect from 1.1.1986. Paragraph 9 of the said letter (Annexure - 1) reads as under:- "Teachers serving on sanctioned post may exercise an option in accordance with para 20 of Appendix - I, within 90 days from the issue of this order in the proforma given in Annexure - III." 7. From the above quoted passage it would clearly appear that the teachers serving on sanctioned post could exercise option in accordance with para 20 of Appendix - I within 90 days from the issue of the said order in the proforma given in ,Annexure - 3. The proforma in Annexure - 3 reads as under:- “Form of option under para 20 of Government of India letter no. F - 1 - 21/87 of U.I. Dated 22nd July, 1988. I................. The proforma in Annexure - 3 reads as under:- “Form of option under para 20 of Government of India letter no. F - 1 - 21/87 of U.I. Dated 22nd July, 1988. I................. Lecturer/Reader/Professor do hereby exercise by option to continue to be governed by the provisions of the existing promotion scheme with all the conditions attached thereto. Full signature of the teacher & Designation. Countersigned. Principal …………………. Head of the Deptt. Vice or Pro - V.C.or President of the G.B.in cases cf Principal of Affiliated Colleges." 8. From the above said proforma it would clearly appear that the incumbent could opt to continue to be governed by the provisions of the existing promotion scheme with all the conditions attached thereto. On reading para 9 with the proforma (Annexure - 3) it can at once be said that the Govt. or the University Grants Commission was not coercing any teacher to become a subject to the new scheme. In fact, the rights if any, flowing from the then existing scheme were saved and preserved. The incumbent if was of the opinion that he would he better benefited under the then existing scheme then it was entitled to opt for the said scheme, however, such an option was to be exercised by him within 90 days from the issue of the said order. It could not be argued that any person who opted for being governed by the then existing scheme was not allowed to be governed by the then existing scheme 9. Paragraphs 18 and 19 of Appendix - 1 annexed to Annexure - 1 read as under:- "18. The promotions made or due under any existing scheme before 1.3.89 will not be reopened. However, in such cases, the benefit of revision will be available to teachers only from the date of their promotion." "19. The existing teachers in Universities and Colleges where the Merit Promotion Scheme formulated by the UGC in 1983. or any other promotion schemes formulated by the State Govt. are in operation will have an option to continue to be governed by the provisions' of those promotion schemes provided that they exercise their option in writing prior to their pay fixation under this scheme. They will also be entitled to the designations envisaged for various categories of teachers in those schemes, but the scales of pay will be as follows:- (i) Lecturer Rs. They will also be entitled to the designations envisaged for various categories of teachers in those schemes, but the scales of pay will be as follows:- (i) Lecturer Rs. 2200 - 4000/ (ii) Reader/Lecturer (Selection Grade) Rs. 3000 - 5000/ (iii) Professor Rs. 4500 - 5700/ 10. The objection against paragraph 18 of the scheme in fact is that the cut - off date i.e. 1.3.1989 is fixed arbitrarily. We fail to understand the argument and are unable to find any arbitrariness or ulterior motive in fixation of the date. The petitioners are simply saying that the date has been fixed arbitrarily. Neither in the petition nor during the course of the arguments they have said anything that what other date could have proved more beneficial to the teachers or to the persons who are opting for the then existing promotion schemes. In a system when some date is to be fixed either for granting, conferring or withdrawing the benefits, then some date is to be fixed after taking into consideration the exigencies and the requirement of the day. It cannot always be argued that fixation of such a date would be bad. If the argument is accepted then any date would not be a good date because the argument that the particular date has been fixed arbitrarily would always be available to every person. The argument that 1st March 1989 has been fixed arbitrarily cannot be accepted. 11. So far, as paragraph 19 is concerned it simply says that where the Merit Promotion Scheme formulated by the GC in 1983 or any other promotion scheme formulated by the State Govt. were in operation, the existing teachers will have options to continue to be governed by the provisions of those promotion schemes provided they exercise their options in writing prior to their pay fixation under the new scheme. From paragraph 19 it would clearly appear that an option is given to the existing teachers to continue to be governed by the schemes formulated by the UGC or framed by the State Govt. The only taboo fixed was that such an option was to be exercised in writing prior to their pay fixation under the new scheme. From paragraph 19 it would clearly appear that an option is given to the existing teachers to continue to be governed by the schemes formulated by the UGC or framed by the State Govt. The only taboo fixed was that such an option was to be exercised in writing prior to their pay fixation under the new scheme. A conjoint reading of para 9 of the letter dated 7.8.1989 (Annexure - 1) and paragraph 19 of Appendix - I appended to Anneurex - 1 would make it clear that within a period of 90 days from the issue of the said order dated 7.8.1989, an option was to be submitted in the proforma given in Annexure - 3. 12. Neither paragraph 9 of Annexure - 1 nor paragraph 19 of the Appendix were mandating the existing teachers or coercing them to opt for the new scheme. A choice was given to them and the choice simply was that they may opt to continue to be governed by the provisions of the existing promotion scheme at will all the conditions attached thereto. 13. It was for the existing teachers opt or not to opt. If they found that they would be benefited by the new scheme, they could come out of the then existing scheme, and in the alternative, if they thought that they are better governed and better placed under the then existing scheme then they could certainly opt for the said existing scheme. 14. After hearing the learned counsel for the parties at length, we are unable to hold that paragraphs 18 and 19 of the Appendix - I are bad, contrary to law or run against the interest of the existing teachers. We are also unable to hold that the date fixed in paragraph 18 of the Appendix is arbirtrary. 15. We find no reason to interfere in the matter. The petition deserves to and is accordingly dismissed.