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2005 DIGILAW 2791 (RAJ)

Babu Singh v. State of Rajasthan

2005-10-24

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-By this petition for writ a direction is sought by the petitioners to allow the pay scale No. 12-A (7500-12000) and its senior scale i.e., pay scale No. 13 (8000-13500) on completion of eight years of service to the Lecturers School Education appointed under the Rajasthan Educational Service Rules, 1970 (hereinafter referred to as “the Rules of 1970”). 2. The factual background giving rise to present petition is as follows:-The petitioner No. 1 is a Lecturer School Education in the subject of Biology and the petitioner No. 2 is an association registered under the Societies Registration Act, 1958 having membership among the Lecturers School Education appointed under the Rules of 1970. 3. The post of Lecturer School Education was included in Rajasthan Educational Service as a consequent to an amendment introduced to the Rules of 1970 under a notification No. F. 1(1) DOP/A-II/85 dated 06.09.1990. The effect to the amendment by notification above was given from 01.09.1988. By the notification dated 06.09.1990 referred above the post of Lecturer School Education was placed in Group “F” to Schedule-I and Schedule-II (girls institutions) appended to the Rules of 1970. Under the Rules of 1970 an avenue for promotion was also allowed to the Lecturers School Education to the post of Headmaster Higher Secondary School which is a post in Group “E” in Schedule-I as well as in Schedule-II under the Rules of 1970 by the notification dated 06.09.1990. 4. The Lecturers School Education were also allowed the same pay scale in which the Headmasters/Headmistress in Secondary Schools were getting their pay. The pay scale equal to the pay scale applicable for the post of Headmaster/Headmistress School Education was given to the Lecturers School Education w.e.f. 01.09.1988 i.e., the date from which the post of Lecturer School Education was included in Rajasthan Education Service. In view of it, it can be well said that from the date the post of Lecturer School Education was encadred under the Rules of 1970 the Headmasters Secondary Schools and the Lecturers School Education were entitled for getting pay in the same pay scales. However, an honorarium of Rs. 200/-per month was allowed to the Headmasters looking to their administrative responsibilities. .5. However, an honorarium of Rs. 200/-per month was allowed to the Headmasters looking to their administrative responsibilities. .5. A challenge was given to the notification dated 06.09.1990 by which the Lecturers School Education were included in the Rules of 1970 by Rajasthan Shiksha Sewa Parishad, an association of .Headmasters Secondary Schools by way of filing a writ petition before this Court. The writ petition so preferred was registered as D.B. Civil Writ Petition No. 5965/1990 and the same was rejected by Division Bench of this Court by Judgment dated 010.1991. By the aforesaid Judgment the Division Bench of this Court while rejecting the writ petition preferred by the association of Headmasters held that the posts of Lecturer School Education and Headmaster Secondary Schools are equivalent post, therefore, if the State Service Rules provides that the post of Headmasters Higher Secondary Schools be filled in by way of promotion with the ratio of 1:1 the rule providing such avenue for promotion cannot be said to be arbitrary and rather it can be said that it has done justice to the lecturers though it has been done belatedly. 6. His Excellency the Governor of Rajasthan while exercising powers conferred by proviso to Article 309 of the Constitution of India framed the Rajasthan Civil Services (Revised Pay Scales) Rules; 1998 (hereinafter referred to as “the Rules of 1998”). The effect to the Rules of 1998 was given from 01.09.1996. In the Rules of 1998 the Lecturers School Education as well as the Head Masters Secondary Schools were placed under the same pay scale i.e., the pay scale No. 12 (6500-10500). An amendment was introduced in the revised pay scale Rules of 1998 under a notification No. F. 16 (5) FD (Rules)/ 98 dated 07.08.1998 providing a new pay scale of Rs. 7500-250-12000 numbered as pay scale No. 12-A. By the same notification the pay scale bearing No. 12-A was allowed to Headmasters Secondary Schools and they were also declared entitled for selection grade on completion of eight years of service as Headmasters Secondary Schools. 7. The grievance of the petitioners is that the Lecturers School Education were treated at par with the Headmasters Secondary School, therefore, the grant of pay scale No. 12-A (7500-12000) and selection grade thereto only to the Headmasters Secondary Schools is discriminatory. 7. The grievance of the petitioners is that the Lecturers School Education were treated at par with the Headmasters Secondary School, therefore, the grant of pay scale No. 12-A (7500-12000) and selection grade thereto only to the Headmasters Secondary Schools is discriminatory. The petitioners, therefore, have claimed for maintaining parity in grant of pay scale among the Headmasters Secondary School and Lecturers School Education. 8. It is contended by Counsel for the petitioner that the Head Masters Secondary School and the Lecturers School Education both are not only the members of Rajasthan Education Service but are part of the same group in Schedule-I and Schedule-II appended with the Rules of 1970. It is also contended by Counsel for the petitioner that the Lecturers School Education from the date of their inclusion in Rajasthan Educational Service were treated at par with the Headmasters Secondary Schools and, therefore, the same pay scale and same avenue for promotion were made applicable to them. It is also contended that the qualification possessed by the Lecturers School Education is higher than the qualification possessed by the Headmasters Secondary Schools which is pre-requisite for appointment on the posts referred above. .9. A reply to the writ petition has been filed on behalf of the respondents stating therein that the Headmasters Secondary Schools are required to discharge additional administrative duties, therefore, from very beginning they were declared entitled to get Rs. 200/-per month as honorarium. It is further stated that the Headmasters raised a demand to allow them higher pay scales looking to the additional nature of their duties, therefore, a committee was constituted by Government of Rajasthan and under recommendations of that committee higher pay scale i.e., the pay scale No. 12-A and then its selection grade is allowed to them. .10. Heard Counsel for the parties. .11. The contention of Counsel for the petitioners is that the Lecturers School Education and the Headmasters Secondary Schools were treated at par under the Rules of 1970 and also under the Rajasthan Civil Services (Revised Pay Scales) Rules 1989, therefore, no discrimination can be made in grant of pay scales under the revised pay scale Rules of 1998. To substantiate the contention Counsel for the petitioner has placed reliance upon a Judgment of Honble Supreme Court in the case of Bhagwan Sahai Carpenter & Ors. To substantiate the contention Counsel for the petitioner has placed reliance upon a Judgment of Honble Supreme Court in the case of Bhagwan Sahai Carpenter & Ors. vs. Union of India & Anr., reported in 1989 (2) SCC 299 .In the aforesaid matter Honble Supreme Court held that allowing higher scales of pay to some of the workmen from an earlier date and to some from later date is discriminatory. .12. I have considered the contention raised by the petitioners. 13. At the threshold I am having no hesitation in saying that the Judgment relied upon by the petitioners rendered by Honble Supreme Court in the case of Bhagwan Sahai Carpenter (Supra), is having no application in present controversy. In the case of Bhagwan Sahai Carpenter (Supra), a specific pay scale to one set of workmen working in some skilled trades was given from a specific date and the same pay scale was allowed to other set of workmen from subsequent date. Honble Supreme Court held that higher pay scales are required to be given to all the employees from the same date and if such pay scales are given on different dates to similarly situated workmen then the same shall be discriminatory. In the instant matter the pay scale No. 12-A is given to the Headmasters Secondary Schools but the same has not at all been extended to the Lecturers School Education and as such the law laid down by Honble Supreme Court in the case of Bhagwan Sahai Carpenter (Supra), is not applicable in the present case. 14. Be that as it may, there is no dispute between the parties that the Lecturers School Education and Headmasters Secondary Schools both are members of Rajasthan Educational Service and both are part of Group “F” in Schedule-I and Schedule-II appended to the Rules of 1970. Both the posts are having an avenue for promotion to the posts enumerated in Group “F” to the Schedule-I and Schedule-II appended to the Rules of 1970. Both the posts were carrying the same pay scales prior to introduction of amendment in pay Rules of 1998 by notification dated 07.08.1998. This Court also treated the Lecturers School Education and the Headmasters Secondary Schools at par in the case of Rajasthan Shiksha Sewa Parishad vs. State of Rajasthan & Ors., D.B. Civil Writ Petition No. 5965/1999, decided on 010.1991. This Court also treated the Lecturers School Education and the Headmasters Secondary Schools at par in the case of Rajasthan Shiksha Sewa Parishad vs. State of Rajasthan & Ors., D.B. Civil Writ Petition No. 5965/1999, decided on 010.1991. It is also pertinent to note that the qualification requisite for the purpose of appointment to the post of Headmasters Secondary Schools and the Lecturers School Education either by way of direct recruitment or by way of promotion is also much or less same. The Headmasters School Education are not required to possess post-graduate degree but they are required to have higher experience of service. On the other hand, the Lecturers School Education are required to possess post-graduate degree in the subject concerned. In view of it the only difference appears to be with the status of these posts is with regard to certain administrative duties which are required to be discharged by the Headmasters Secondary Schools and to compensate those extra working respondents allowed fixed honorarium to them. It is also pertinent to mention here that the Lecturers School Education never works under the administrative control or subordination of the Headmasters Secondary School Education, as the Lecturers are required to be posted in Senior Higher Secondary Schools only. The Headmasters for their additional administrative duties were earlier paid an honorarium of Rs. 200/-per month but they were kept in the same pay scale which was allowed to the Lecturers School Education. The respondents have admitted that the higher pay scale was allowed to the headmasters on being demanded by them and under the recommendations of a committee constituted by the Government of Rajasthan. The Lecturers School Education as well as the Headmasters Secondary Schools were kept in the same pay scale for years together. If the respondents want to make any distinction among the persons who are classified as equals for the purpose of grant of promotional avenues and pay scales then there should be cogent reasons to that. The Lecturers School Education as well as the Headmasters Secondary Schools were kept in the same pay scale for years together. If the respondents want to make any distinction among the persons who are classified as equals for the purpose of grant of promotional avenues and pay scales then there should be cogent reasons to that. The respondents in reply to the writ petition have stated that they acted upon the demand made by the Headmasters but nothing is said as to the Lecturers, who were at one point of time considered entitled for grant of the pay scale equivalent to the Headmasters Secondary Schools and kept in the same pay scale as given to Headmasters Secondary Schools for years together, were not found entitled to get the pay scale No. 12-A. therefore, the respondents when considered the case of the Headmasters for grant of higher pay scale, the appropriate course before them was to consider the case of the Lecturers School Education too. I do not find any just and valid reason for not considering the case of the Lecturers School Education for grant of higher pay scale i.e., equivalent to the Headmasters Secondary Schools when the case of Headmasters was considered by the Government by constituting a committee. 15. The another aspect of the matter is that under the Rules of 1970 the post of Headmasters Secondary Schools and the post of Lecturers School Education are part of Group “F” in Schedule-I and Schedule-II. Both the posts are having an avenue for promotion to Group “E”. Special Bench of this Court in the case of Amarchand & Ors. vs. State of Rajasthan & Ors., reported in 1977 WLN (UC) 261, while dealing with the question pertaining to determination of interse seniority among the persons coming from two different posts having different pay scales on one promotional post held as under:- “It was next contended by Mr. Mridul that the question of seniority in the Rajasthan Educational Service must not disturb their seniority in their separate categories as Senior Teachers and Teachers Grade II. In substance he urged that when Senior Teachers are recruited to the post of the Head Master alongwith the Teachers Grade II, the former should be given seniority in the new service to the later. In substance he urged that when Senior Teachers are recruited to the post of the Head Master alongwith the Teachers Grade II, the former should be given seniority in the new service to the later. The learned Single Judge, in our opinion, has given a line of approach for the State to consider the question raised by the petitioner. While giving two suggestions, the learned Single Judge did not throw a third suggestion to the State which can conveniently be given by us i.e., when the officers are appointed from two different grades one higher from the another, then in that event, the officer appointed from a higher grade should not be placed below one appointed from the lower grade. This principle of fixing seniority has been laid down in Nawal Kishore Singhs case, (Supra), by the Patna High Court. We are in agreement with the Patna High Court Judgment . In the present case, the recruitment is made in a particular ratio of 1:4 i.e., one from the Senior Teachers and 4 from Teachers Grade II. Their seniority is also fixed in a cyclic order i.e., one Senior Teacher and then four Teachers Grade II and so forth and so on. This cyclic order undoubtedly creates heart- burning in those teachers who come from a superior position of Senior Teacher. Thus, it is better if the State Government can reconsider the question of appointing the Head Masters from the two sources fixing their seniority in the new service in accordance with the principles laid down, in Nawal Kishore Singh case (Supra), by the Patna High Court. These are the principles which we find in other service also. For example, in the Rajasthan Higher Judicial Service, a promotee is always kept senior to a direct recruit, if both of them are recruited in the same year. On that analogy it is suggested that the rule of seniority should be suitably amended by the State Government so as to avoid anomaly which stares us in the face.” 16. In view of the observations above the seniority of the Lecturers School Education may be adversely effected in event of their promotion to the post of Headmasters Higher Secondary Schools on the count of being in lower pay scale in the feeder post. In view of the observations above the seniority of the Lecturers School Education may be adversely effected in event of their promotion to the post of Headmasters Higher Secondary Schools on the count of being in lower pay scale in the feeder post. The statute nowhere treats the Lecturers, School Education subordinate or inferior to the Headmasters, Secondary Schools but by keeping them in lower pay scale their position on the promoted post may be adversely effected. 17. Looking to all the facts and circumstances of this case I am of the considered opinion that the Government should have also considered the case of the Lecturers Schools Education for grant of pay scales equivalent to the pay scales granted to the Headmasters Secondary Schools by appointing a competent committee. .18. In view of whatever discussed above I consider it appropriate to direct the respondent State to appoint a competent committee to consider the case of Lecturers School Education for grant of pay scales equivalent to the pay scales granted to the Headmasters Secondary Schools. The committee so appointed shall allow the present petitioners to represent their case before it. The committee after considering all the factual and legal contentions shall decide as to whether the Lecturers School Education are entitled for grant of pay scales equivalent to the Headmasters Secondary Education. After receiving the recommendations, if any made by the competent committee, the Government of Rajasthan shall consider the same and take appropriate decision with regard to grant of pay scales to the Lecturers School Education. This entire process as above is required to be completed by the respondents within a period of one year from today. 19. With these observations the writ petition is disposed of . 20. No order as to costs.