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Madhya Pradesh High Court · body

2004 DIGILAW 83 (MP)

N K RAI v. STATE OF M P

2004-01-28

ARUN MISHRA

body2004
Judgment ( 1. ) IN this writ petition question involved is whether on school being taken over by the State Government, teachers and other employees can be paid lesser salary and ordered to be absorbed on the post carrying different designation than the post sanctioned for grant in aid held by petitioners as per their qualifications. Though regular posts held by petitioners exist in the Govt. schools. ( 2. ) PETITIONERS are teachers and other employees of Anandi Lal Rai higher Secondary School, Bachaiya, Tehsil, Bahoriband, District - Katni which was a private school receiving cent percent grant-in-aid. School has been taken over by the State Government with effect from 16-11-2000. As per Order (P/2)the Lecturers have been ordered to be absorbed as "shikshakarmi Grade I", upper Division Teachers have been ordered to be absorbed as "shikshakarmi grade II" and Lower Division Teachers have been ordered to be absorbed as "shikshakarmi Grade III" and other employees who were receiving regular pay scale of the post held by them such as Peon, Chowkidar, Farash have to be appointed at the rate prescribed by the Collector. ( 3. ) SCHOOL in question Anandi Lal Rai Higher Secondary School was receiving grant-in-aid from the State Government and used to be run by society called Shiksha Vikas Samiti, Bachaiya. The said school was established prior to 30 years and was receiving cent percent grant-in-aid since 1980. Petitioners No. 1,2,3,4,6,7,9 and 10 were appointed in the year 1974-1975 and had rendered the services or 25 years before the school was taken over, others were appointed in the year 1981, 1987 etc. Petitioner No. 11 was appointed on compassionate ground in April, 1998. List (P/1) indicates the date of appointment against the names of members of the staff. The State has approved the appointments, it was making the payment to the Lectures more than Rs. 8,000/-, Upper Division teachers used to receive more than Rs. 6,000/-, Asstt. Teachers salary was more than Rs. 5,000/- and other staff was also getting the prescribed salary for the post and the payment was above Rs. 3,000/ -. All the petitioners were placed in the regular pay scale. Pay scale has been revised as per the recommendations of the Vth Pay Commission. ( 4. ) STATE Government has passed an Order (P/2) on 16-11-2000 for taking over the school. 3,000/ -. All the petitioners were placed in the regular pay scale. Pay scale has been revised as per the recommendations of the Vth Pay Commission. ( 4. ) STATE Government has passed an Order (P/2) on 16-11-2000 for taking over the school. The designation of the posts of petitioners as well as their salary have been reduced to the lowest grade. Action is illegal and arbitrary. Petitioners have been put to great financial loss. The Lectures who were getting rs. 8,080/-, salary has been reduced to Rs. 1200/-, salary of Upper Division teacher was Rs. 6749/-, it has been reduced to Rs. 1,000/-, salary of Asstt. Teacher was Rs. 5,692/-, it has been reduced to Rs. 800/ -. Similarly the salary of peon and Watchman has also been reduced from regular pay scale to the rate prescribed by the Collector. Action is unconstitutional, illegal and arbitrary. In other Non-Government Higher Secondary School, Badwara, District-Katni taken over by the State Govt. in 1997-98 complete staff of the said school was absorbed without changing their pay scale and salary. Other similar schools have been taken over by the State Govt. on prevailing pay scale, salary of the staff, but in case of petitioners institution discrimination has been meted out hence the writ petition has been filed before this Court. ( 5. ) A return has been filed by respondents 1 to 3. It is contended in the return that while taking over the school, the State Govt. has granted provisional sanction for creation of the posts in the school till the screening was carried out by the Screening Committee. School was taken over on various conditions which were stipulated in the order of taking over the school. As per condition No. 2, the Government shall not be liable for any liability of the institution, educational qualification of the staff shall be screened and for that purpose screening committee shall be constituted. After screening by the committee the action for merger of the Staff shall be taken. The seniority of the staff shall be counted from the date of taking over of the Institution by the Govt. The condition No. 22 clearly stipulates that before merger of the staff an undertaking shall be obtained from them to the effect that if after merger they are paid less salary than earlier, then they will not challenge the said action of the Govt. The condition No. 22 clearly stipulates that before merger of the staff an undertaking shall be obtained from them to the effect that if after merger they are paid less salary than earlier, then they will not challenge the said action of the Govt. in any Court of law. In case an employee lacks educational qualification or absorption has not been made due to reservation, Govt. shall not be responsible for the same. Process for absorption of the Staff is under progress and a committee for the purpose of screening has already been constituted. The grievance of petitioners that they are being paid less salary and designation has been changed after taking over of the school by the Govt. is misconceived and baseless. Petitioners have accepted the condition of their absorption, hence are bound by the same. State Govt. could have easily terminated the services of the staff, however, keeping in view the welfare of the staff, the State Govt. has decided to absorb them in the service. Petitioners cannot be permitted to blow hot and cold together and cannot raise the grievance that their designation has been changed or salary has been reduced. Fresh start has been given to petitioners. The prayer of petitioners to grant benefit of Vth Pay Commission is also like asking for moon. Many other schools have been taken over by the State govt. under the same terms and conditions. ( 6. ) RESPONDENT No. 4/school has contended in the return that teachers and other employees were receiving the salary as per statement (R-4/1), salary has been reduced as per letter (R- 4/2) dated 16-11-2000 of State of M. P. , department of School Education. There is no agreement reached that teachers and other employees shall work on the less salary and they cannot approach the court of law for redressal of their grievance. Letter (R-4/3) was issued by School education Department on 18-8-1994 in which it has been provided that service conditions cannot be changed arbitrarily. The decision of the State Govt. is not in accordance with law and discriminatory also as Pt. Dev Prabhakar Shashtri school, Gurjikala has been taken over which was only recognised institution was not receiving grant-in-aid. Similarly Non-Government Matra Sadan vidyalaya Mandir Hasod, District-Raipur has been taken over on the existing scale of pay of the teaching staff and other employees as per Order R-4/5. is not in accordance with law and discriminatory also as Pt. Dev Prabhakar Shashtri school, Gurjikala has been taken over which was only recognised institution was not receiving grant-in-aid. Similarly Non-Government Matra Sadan vidyalaya Mandir Hasod, District-Raipur has been taken over on the existing scale of pay of the teaching staff and other employees as per Order R-4/5. Other schools have also been taken over as per order (R-4/6 and R-4/7) without reduction of salary of the staff and other employees. As the school in question was receiving cent percent grant-in-aid, thus, reducing of salary of the employees is illegal and uncalled for. ( 7. ) A rejoinder has been filed by the petitioners. It is pointed out in the rejoinder that undertakings have been called for and submitted under the compulsion that in case undertakings are not furnished, petitioners will be removed from service. Undertakings (P/11) were furnished under protest and subject to decision of the High Court. Service conditions of the petitioners cannot be changed in view of the policy of the State for taking over the school. Thus, the action of the respondent/state is illegal and arbitrary. ( 8. ) SHRI Rajendra Tiwari, learned senior counsel appearing for petitioners has submitted that State is bound by the rules/guidelines framed for absorption of employees in the event school is taken over by the State Govt. The case of petitioners cannot be dealt with less advantageously to the conditions prescribed for taking over schools. The reduction of salary is illegal and arbitrary. Salary is protected in the case of employees whose services have been absorbed in the event of school being taken over by the State Govt. The action of obtaining undertakings from petitioner to the effect that they will accept of absorption on whatever post or whatever salary and will not file writ petition is not enforceable being outcome of superior bargaining power. Matter could not have been dealt with by the State Govt. arbitrarily and employees cannot be denied right to have redressal of the grievance in the Court of law. Obtaining of such an undertaking is per se illegal and arbitrary. His further submission is that school was receiving cent percent grant-in-aid. Petitioners were holding approved sanctioned post under M. P. Ashashkiya Sikshan Sanstha (Ad-hyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter referred to as "the Adhiniyam of 1978" ). Obtaining of such an undertaking is per se illegal and arbitrary. His further submission is that school was receiving cent percent grant-in-aid. Petitioners were holding approved sanctioned post under M. P. Ashashkiya Sikshan Sanstha (Ad-hyapakon Tatha Anya Karmchariyon Ke Vetano Ka Sandaya) Adhiniyam, 1978 (hereinafter referred to as "the Adhiniyam of 1978" ). Thus, the reduction of salary and asking them to work on the lower post with paltry salary than approved one held by petitioners is illegal and arbitrary. When the petitioners possess the qualifications commensurate to the post held by them they ought to have been ordered to be accommodated/absorbed on the same very post which was held by them. Designation of teachers has been changed to Shikshakarmi just in order to reduce their salary which is impermissible. Even otherwise action is illegal, arbitrary and unconstitutional. Non-teaching staff could not have been ordered to be paid the salary at the rate prescribed by the Collector. ( 9. ) MS. C. Sharma, learned GA appearing for respondents 1 to 3 has submitted that services of teachers have to be absorbed as Shikshakarmi as presently the State Govt. is appointing Shikshakarmis instead of making the appointment as Lecturer/upper Division Teacher/lower Division Teacher. An undertaking has been furnished by each of the petitioners that they will accept the absorption on whatever post offered and even if their salary is reduced, they will not go to the Court of law, hence, writ petition is not maintainable and is liable to be dismissed. ( 10. ) THE central question for consideration in the instant writ petition is whether the decision of the State Govt. to create the post for absorption of the teaching staff as Shikshakarmis and of other employees at the rate prescribed by the Collector as per Order (P/2) can be said to be legally justified. ( 11. ) IT is clear that scales of pay of teachers and other employees were similar to the corresponding categories of employees in Govt. schools. The matter of absorption is not as per discretion but guided by policy decision prevailing. State is bound to absorb service of regularly appointed employees in case they possess qualification. The regular posts of Lecturer, Upper Division teachers (Teacher), Lower Division Teachers (Asstt. Teacher) are in existence in Govt. schools. ( 12. ) WAY back in the year 1967 Govt. The matter of absorption is not as per discretion but guided by policy decision prevailing. State is bound to absorb service of regularly appointed employees in case they possess qualification. The regular posts of Lecturer, Upper Division teachers (Teacher), Lower Division Teachers (Asstt. Teacher) are in existence in Govt. schools. ( 12. ) WAY back in the year 1967 Govt. of M. P. Education Department has approved the terms and conditions for absorption of the staff of Non-Government and local bodies schools taken over under Government control. The initial instructions contained in Departmental Memo dated 28th June, 1960 were superseded by memo (P/5) dated 21st Dec. 1967. In continuation of the said memo (P/5) dated 21st December, 1967, yet another memo (P/6) has been issued by Govt. of M. P. , Department of School Education on 26-6-1995. The memo (P/6) supersedes the instructions contained in memo dated 28th June, 1960 and memo dated 21st December, 1967. Clause (2) of memo (P/6) provides that qualification of the member of the staff of non-Government/local body schools to be absorbed in Government service shall be the same as prescribed by the Government for these posts. Clause 3 (a) provides for absorption. The upper Division Teachers, Lecturers and other staff will be absorbed on the posts held by them at the time of taking over of the institutions under Government control provided (i) he is qualified for the post held by him and (ii) he is receiving the prescribed scale of the pay of the post. A person who does not fulfil the conditions laid down may be absorbed in lower grade/post for which he is entitled on the strength of his qualifications and pay. ( 13. ) PAY fixation has also been provided in memo (P/6 ). In clause (5)the pay of the member of the staff of non-Government and local body schools taken over under Government control, shall be fixed on absorption, in the initial stage of the pay scale of the post/cadre in which he is absorbed, subject to the condition that where such pay works out to be less than the pay which they have been drawing at the time of absorption, their pay may be fixed at the same equivalent stage or the stage immediately below with the difference as personal pay to be absorbed in future increments, he may be allowed the minimum. A committee has to be constituted to consider screening of the staff of the Non-Government school as provided in clause (7 ). Memo has been issued by order and in the name of Governor and in the absence of statutory rules, having been framed for absorption of such employees, has the force of law and is binding over the Govt. of M. P. Clause (3), (5) and (7) of memo (P/6) dated 26-6-1995 which are relevant are quoted below :- "3. Absorption : The Upper Division Teachers, Lecturers and other staff will be absorbed on the posts held by them at the time of taking over of the institutions under Government control provided: (i) He is qualified for the post held by him. (ii) and he is receiving the prescribed scale of the pay of the grade. A person who does not fulfill the conditions laid down in sub-para (i) and (ii) above may be absorbed in lower grade/post for which he is entitled on the strength of his qualifications and pay. 5. Pay Fixation: The pay of the member of the staff of non-Government and local body schools taken over under Government control, shall be fixed on absorption, in the initial stage of the pay scale of the post/cadre in which he is absorbed, subject to the condition that where such pay works out to be less than the pay which they have been drawing at the time of absorption, their pay may be fixed at the same equivalent stage or the stage immediately below with the difference as personal pay to be absorbed in future increments. Where the existing pay of the absorbed employee is less than the minimum of the prescribed scale, he may be allowed the minimum. 7. Committee: The Government have also approved the appointment of the following committee for each region to consider the screening of the staff of non-Government/local Body schools approved to be taken over under their control: (i) Joint Director of the Division. (ii) Principal of a Government School situated at the headquarters of the Education Division. (iii) Headmaster/principal of the school to be taken over. The Committee should record in writing full details in regard to each member of the school staff and also its recommendations and the record will be signed by each member of the Committee. ( 14. (ii) Principal of a Government School situated at the headquarters of the Education Division. (iii) Headmaster/principal of the school to be taken over. The Committee should record in writing full details in regard to each member of the school staff and also its recommendations and the record will be signed by each member of the Committee. ( 14. ) YET another memo (P/7) dated 6-12-1972 has been placed on record in which it was specified under the instructions issued on 21-12-67 that salary shall not be reduced at the time of absorption of employee. Protection to salary is provided in the guidelines framed by State of M. P. for the last 36 years. ( 15. ) IN the instant case, it is not in dispute that school in question was receiving cent percent grant-in-aid which was paid by the State Government. The petitioners, the teachers and other staff for whom the grant-in-aid was released were approved by the State Govt. as required under the provision of adhiniyam of 1978. As per rule 33 of Revised Grant -In -Aid Rules, Grant-in-aid has to be released on the basis of same pay scale which is admissible to the corresponding category of employees in the Govt. schools. Thus, the teachers and other staff of the school taken over by the Govt. were enjoying the statutory protection of the Adhiniyam of 1978 and revised Grant -In -Aid Rules framed by the State Govt. which also have the statutory force. Besides there are conditions of affiliations prescribed by the Board of Secondary Education which also requires payment in the same pay scale to the employees of non-government institutions which is admissible to the corresponding category of employees in Government schools. Thus, condition of recognition, affiliation had provided protection to the pay scale of petitioners and other employees of the aided institutions, such pay scales cannot be less advantageous as compared to the corresponding category of employees in Government institutions. State was making the payment of salary by release of grant-in-aid is also not in dispute. It made the payment in the pay scale admissible to post held is also not in dispute and pay scale was same as prescribed for similar category of Government employees. ( 16. State was making the payment of salary by release of grant-in-aid is also not in dispute. It made the payment in the pay scale admissible to post held is also not in dispute and pay scale was same as prescribed for similar category of Government employees. ( 16. ) IN the above backdrop of the facts coupled with the provision made in the memo (P/6) relating to absorption of the employees, it is clear that the pay scale has been protected. In case an employee was drawing more pay than the initial stage, their pay has to be fixed at the equivalent stage or the stage immediately below with the difference as personal pay to be absorbed in future increments. Thus, when pay has been protected, in my opinion, it was not open for the Govt. of M. P. to depart from conditions in memo and prescribe differently in order (P/2) to make payment of the amount which is admissible in case of Lecturer that of Shikshakarmi Grade I, in case of Upper Division Teacher that of Shikshakarmi Grade II, in case of Lower Division Teacher that of shikshakarmi Grade III and to other employees at the rate prescribed by the collector. The action is not only illegal, but is violative of the protection conferred under Article 14 and 16 of the Constitution of India. Most of the petitioners have rendered the services for last 15-25 years prior to taking over the institution, they have sufficient experience. The State Government has recently adopted method of appointment of Shikshakarmis Grade I, II and III so that it is not liable to make the payment of salary admissible to Lecturer, upper Division Teacher (Teacher) and Lower Division Teacher (Asstt. Teacher) which carries the pay scale prescribed under the rules. I am not examining the legality of the State action of creation of posts of Shikshakarmi grade I, II and III under independent rules. However, the question in the instant case is confined to the question when the petitioners were holding the approved posts of Lectures, Upper Division Teachers and Lower Division teachers, whether on school being taken over by the State, it could have designated them instead of Lecturers, Upper Division Teacher, and Lower division Teacher as Shikshakarmi Grade I, II and III and could have relegated other employees from regular scale of pay to the rate prescribed by the Collector. In my opinion, when the experience has been gained by petitioners and they are well qualified, were holding the posts approved/sanctioned; appointments were approved by the State of M. P. in the school which has been taken over and such posts exist in the Government schools. It is not in dispute that in Govt. Schools posts of Lecturer, Upper Division Teacher (Teacher) and Lower division Teacher (Asstt. Teacher) exist. Thus, in my opinion, it was not open to the State to provide pay scale of the Shikshakarmi Grade I, II and III to lecturer, UDT and LDT and salary of other employees could not have been reduced at the rate prescribed by the Collector. They ought to have been given the pay scale which is admissible to such an employee in the Government institution that of Lecturer, UDT, LDT, Peon, Watchman, etc. and their cases cannot be dealt with at a less advantageous manner than prescribed in memo (P/6) which prescribes the conditions of absorption of employees of the schools taken over by the State Government. ( 17. ) A Division Bench of this Court in Rajendra Singh Thakur Vs. State of M. P. and others, 1988 MPLJ 229 while dealing with the case of college taken over by the State Govt. has laid down that State Govt. by an arbitrary executive fiat cannot take over the school on whatever terms, when there are lines/rules they are to be adhered to and case cannot be dealt with less advantageously. The Division Bench has followed its earlier decision in Manoj shrivastava Vs. State of M. P. , 1986 MPLJ 404 = 1986 JLJ 176 wherein this Court has laid down that when a person is duly qualified to hold a post and was serving in the college on a post, on the date when the college was taken over by the state, then he has a statutory right for consideration for absorption by the screening committee in accordance with the statutory provisions of the relevant rules. In the instant case there is a policy which in absence of statutory rule is equally binding and has the force of law. Executive instructions have the force of law in absence of statutory provisions and are equally binding as observed by the Apex Court in State of M. P. and another Vs. Ku. In the instant case there is a policy which in absence of statutory rule is equally binding and has the force of law. Executive instructions have the force of law in absence of statutory provisions and are equally binding as observed by the Apex Court in State of M. P. and another Vs. Ku. Nivedita Jain and others, (1981) 4 SCC 296 , Surinder Singh Vs. Central Government and others (1986) 4 scc 667 and in State of Gujrat Vs. Akhilesh C. Bhargav and others, (1987) 4 scc 482 . ( 18. ) LEARNED counsel for petitioner has relied upon State of Mysore vs. B. Basavalingappa, AIR 1987 SC 411 in which it has been laid down that if at the time of initial appointment there was one cadre and there is no substantial difference in the qualifications, same pay scale cannot be denied. He has also placed reliance on Bhagwan Sahai Carpenter and others Vs. Union of India and another, AIR 1989 SC 1215 in which it has been laid down that allowing higher scale of pay to employees of some trades from earlier date and denial of the same to others and grant of it from a later date violates equality clause. He has also relied upon State of Mysore and another Vs. H. Srinivasmurthy, AIR 1976 sc 1104 wherein the policy was evolved by the State of relating back, date of absorption to the date of deputation, principle was not followed in case of petitioners similarly situated, State was directed to follow the same principle in the case of petitioner giving him benefit accruing in the intervening period. ( 19. ) IN the instant case it is clear that Govt. of M. P. has not granted the pay scale which has to be obtained by the teachers and other employees of the school being taken over in accordance with the policy (P/6 ). As apparent from Orders (R-4/4 and R-4/5) that petitioners have been denied the benefit which has been given to employees in case of other similar schools taken over by State of M. P. which action is not only discriminatory but is impermissible in view of Policy (P/6 ). In my opinion, State is bound to act in accordance with the policy (P/6 ). ( 20. In my opinion, State is bound to act in accordance with the policy (P/6 ). ( 20. ) THE submission which has been raised by learned counsel for respondents that an undertaking was furnished by each and every employee which is binding hence they cannot file a writ petition is repugnant to the spirit of the Constitution of India which provides right to legal remedy as one of the basic right of an individual. Recourse to the legal remedy could not have been thwarted. Such an undertaking ought not to have been asked. Undertaking which has been asked is to the effect that petitioners will abide by the Act of the State and will accept the absorption on whatever post offered, even in case there is reduction of salary made arbitrarily. Imposition of such a condition is nothing but outcome of superior bargaining power of the State of M. P. When the school is taken over policy framed by the State of M. P. provided certain safeguards, it is surprising that how in view of policy such kind of undertaking could have been asked for, such an undertaking does not create any estoppel. Their case cannot be dealt with in less advantageous manner as prescribed in memo (P/6 ). Furnishing of undertaking cannot take away the protection conferred upon them by law of not to be dealt with arbitrarily and as per policy (P/6 ). Such undertakings/conditions which are outcome of superior bargaining power are not enforceable as also held by the Apex Court in Central Inland water Transport Company Vs. Brajo Nath Ganguly, AIR 1986 SC 1571 = (1986)3 SCC 156 . ( 21. ) IN my opinion, it is not open to the State to dictate whatever terms it want at the time of taking over the institution. It is bound by certain principles particularly when the posts existed in the school have been approved including the scales of pay for grant-in-aid, incumbents have held the post for last 20-25 years, were drawing the salary in regular pay scale. All of a sudden reduction could not have been ordered in arbitrary manner. Action is nothing but outcome of non- application of mind and non-consideration of the conditions on which schools can be taken over. Conditions of absorption cannot be illegal, unreasonable or arbitrary. All of a sudden reduction could not have been ordered in arbitrary manner. Action is nothing but outcome of non- application of mind and non-consideration of the conditions on which schools can be taken over. Conditions of absorption cannot be illegal, unreasonable or arbitrary. It is surprising when State was making the payment of grant-in-aid at the rates prescribed for regular posts at the relevant time and when it has approved the appointment as incumbents were qualified, posts are also there, it passes comprehension how it can order reduction of the salary in the method and manner in which it has been done by executive fiat. State had deep and pervasive control even when the school was receiving grant-in-aid. Petitioners are duly qualified has not been disputed. Appointments were approved under Adhiniyam of 1978. Thus, action of absorption of Lecturers, udt, LDT on posts of Shikshakarmi Grade I, II and III is totally illegal. They ought to have been absorbed as Lecturers, UDTs (redesignated as "teacher")and LDTs (redesignated as "asstt. Teacher") in the regular pay scale prescribed, even lor other posts of non-teaching staff pay ought to have been arrived at in accordance with clause (5) of memo (P/6 ). ( 22. ) IN view of above discussion, writ petition is allowed. The teaching staff is held entitled for absorption as Lecturer, UDT (redesignated as "teacher"), LDT (redesignated as "asstt. Teacher") and non-teaching staff has also to be absorbed as per their qualifications on the post of Peon, Watchman, etc. in the prevailing pay scale of the posts. Salary of the petitioners has to be fixed in accordance with memo (P/6 ). Let needful be done within three months. Parties to bear their own cost as incurred. Writ Petition allowed.