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Himachal Pradesh High Court · body

2009 DIGILAW 266 (HP)

MANMOHAN PARSHAD v. STATE OF H. P.

2009-04-01

SANJAY KAROL

body2009
JUDGMENT Sanjay Karol, J. (Oral):- In the present petition, the petitioner has prayed for the following relief:- “(i) that the order dated 4.1.96 to the extent impugned may be quashed and set aside. In the alternative the respondents may be directed to promote the applicant as Head Teacher w.e.f. 4.1.96 with all consequential benefits. (ii) That the applicant may be held entitled to promotion w.e.f. 4.1.96. He be given such promotion with consequential benefits. (iii) The respondents may be directed to produce entire record pertaining to the case and they may be burdened with the cost of the Original Application. “ 2. The petition was filed on 2.8.1996 and admitted on 28.10.1996. It is the admitted case of the parties that the petitioner has since retired. Private respondents No. 4 to 11 were proceeded ex-parte on 16.9.1998. Even they have retired. 3. Due to long pendency of the present petition, Mr. K. D. Shreedhar, learned counsel for the petitioner prays that alternate relief of according consequential benefits to the petitioner w.e.f. 4.1.1996 be considered. 4. With effect from 3.11.1965, petitioner was appointed as JBT teacher (Untrained) with the respondent-Government The Government sponsored him for undertaking training in JBT Course which he successfully completed in August, 1969. Importantly, for the said period, he was treated on duty and paid full salary of a JBT teacher. The State of Himachal Pradesh accorded all benefits of pay fixation to the petitioner from the date of his first appointment. On 25.8.1994, the respondents circulated the final seniority list as on 31.3.1991 of JBT (State cadre teachers) working in District Kangra. Petitioner was placed at Sl. No. 328 (old Srl. No. 1010) at his correct place of seniority (Annexure A-5). The private respondents herein were placed lower than the petitioner. 5. Everything went on well until 4.1.1996 when the State promoted the private respondents, who were placed junior to the petitioner in the seniority list as Head Teacher in the pay scale of Rs.1410-2460. It is so evident from order dated 4.1.1996 (Annexure A-1), also impugned in the present petition. 6. 5. Everything went on well until 4.1.1996 when the State promoted the private respondents, who were placed junior to the petitioner in the seniority list as Head Teacher in the pay scale of Rs.1410-2460. It is so evident from order dated 4.1.1996 (Annexure A-1), also impugned in the present petition. 6. The respondents have opposed the petition stating that the order dated 6.6.1990 (Annexure A-2), by virtue of which benefits of seniority from the date of appointment were conferred upon the petitioner and other similarly situated persons, was clarified by the Director, Primary Education, Himachal Pradesh in terms of letter dated 21.9.1993 (Annexure R-III) and since the benefits of seniority were wrongly conferred upon the petitioner, the seniority list was revised and the petitioner’s seniority was reassigned at Srl. No. 1663-A. Hence, the petitioner could not have been promoted as Head Teacher. Annexure A-2 is the decision dated 6.6.1990 taken by the Govt. in concurrence with the Finance Department. The contents of the same are reproduced as under:- “Regarding giving seniority to emergency Basic Trained/ Untrained J.B.T. etc. teachers from the date of appointment. With reference to your letter No.Shiksha-H(11)(Pr.)2-78/88-1, dated 6.1.1990 on the subject mentioned above, Governor, Himachal Pradesh is pleased to give seniority to emergency trained for less than one year/one year or two years training and Untrained J.B.T. teachers who have received special certificate etc. from the date of their appointment on the following conditions:- Concerned teachers should be given seniority from the date of appointment as has been done by Punjab Govt. for such teachers. In case as a result of giving such seniority any teacher is entitled for promotion from back date even if he has retired or died while in service then he should be given notional promotion. By doing so, such teacher will be entitled to the benefit of pension and D.C.R.G on the basis of increased pay but he will not be given benefit of pay and allowances; and Director Primary Education should also ensure that while issuing orders in this behalf seniority to all similarly situated teachers should be given on the basis of equality and fair play and nobody should be left out from the spirit of this decision i.e. this decision should be implemented to all such teachers. This has been issued with the concurrence of Finance Department Dy. No. 324-Fin.(C)-B(15)-6/88 dated 5.4.1990.” (Emphasis supplied) 7. This has been issued with the concurrence of Finance Department Dy. No. 324-Fin.(C)-B(15)-6/88 dated 5.4.1990.” (Emphasis supplied) 7. The directions were immediately implemented in letter and spirit and benefits given to all eligible employees including the petitioner. Clarificatory letter dated 21.9.1993 (Annexure R-III) reads as under:- “Sub: Regarding granting seniority from the date of appointment to Emergency basic trained/untrained JBT etc. teacher. Reference your letter No. Shiksha Hamirpur-Pry.(B-1)16/92) Seniority-153-54 dated 10.4.92 on the subject cited above, it is intimated that the benefit of seniority is only admissible to provincilised cadre (State cadre). You are, therefore, requested that action in the matter be taken immediately. Sd/-Director Pry. Education.” 8. Importantly, the Director has taken a contradictory stand which is evident form his earlier letter dated 26.9.1990 (Annexure A-4), conveying that the letter dated 28.7.1990 does not restrict the applicability of the benefits accorded therein (only to provincilised cadre teachers). The contents of the same are reproduced as under:- “Your attention is invited to your office letter No.Shikha-Kangra (90) Pr.PE-81/Seniority Emergency dated 11th July, 1990 and to state that the matter should be disposed of as per Govt. letter No. Shikha-11-Kh. (13)8/96 dated 6th June, 1990, a copy of which has been sent vide this date Letter No. even dated 28th July, 1990. It is also started that it has nowhere been written in the Govt. letter vide which this provision will be applicable only to provincialised cadre teachers.” 9. It appears that the matter for clarification came up before the Government and the Government directed the Director to take a decision on the basis of earlier letter dated 6.6.1990 (Annexure A2). Having himself taken the decision on 26.9.1990, there was no basis or necessity for the Director to have formed a different opinion than what he had taken vide his earlier letter dated 6.6.1990. There was no fresh material before him to do so. 10. In this view of the matter, the stand, now taken by the respondents that in view of the clarificatory letter seniority list was revised, is untenable in law. The action of the Director is illegal and unsustainable in law. 11. There was no fresh material before him to do so. 10. In this view of the matter, the stand, now taken by the respondents that in view of the clarificatory letter seniority list was revised, is untenable in law. The action of the Director is illegal and unsustainable in law. 11. Importantly, the issue of granting benefits of pay-scale to similarly situated petitioners who had been initially appointed as JBT (Untrained teachers), came up for consideration before the Division Bench of this Court in Civil Writ Petition No.319 of 1997, titled as Hira Lal vs. State of H. P. & Anr., which was decided on 17.6.2008 12. In Hira Lal (supra), the petitioner joined as Untrained teacher on 4.11.1968. Having sponsored by the Government, he completed his training successfully and claimed salary from his first date of appointment, including the period of his training. Importantly, the Division Bench took notice of the letters dated 15.2.1996 and 6.5.1989 issued by the respondents themselves. 13. The text of letter dated 15.2.1996 reads thus: “As per letter No.Fin. (C-V) (7)-29/88 dated 5.5.1989 from Finance Department on the above subject it has been clarified that for the purpose of placement in senior scales/selection scale from 1.1.1986 the counting is to be done from the date of 1st appointment. A clarification has been given in this regard by this office vide letter No. EDN-B (11) (Pry.) 3-13/89 dated 6.5.89 copy attached. Therefore, the matter may be decided as per the clarification of the finance department referred above.” (Emphasis supplied) 14. Letter dated 6.5.1989 reads as under: “I am directed to say that the pay scales of certain categories of Teachers in the Education Department like Head Master, TGT, Lecturers, B.P.Es. and JBT etc. have been revised w.e.f. 1.1.1986 prescribing three different scales. The inquiries are being received: (i) Whether the period of 8 and 18 years for placement in the Senior Scale and Selection Scale is to be reckoned from 1.1.1986 or since the date they are working on the same post, and (ii) Those teachers who have completed 8/18 years service on or before 1.1.1986 and whose pay has been fixed according to the ready reckoner below minimum of the senior scale and selection scale of these categories whether they will be fixed at the initial of the senior or selection scales. 15. 15. In this connection, the position is clarified as under: (i) The period of 8 and 18 years is to be reckoned from the date one is working on the same post, and (ii) if an employee on the basis of his length of service on that post qualified for placement in the Senior Scale or the Selection Scale, he will straightaway be placed in that scale irrespective of the fact whether he is drawing less pay than the minimum of that scale. This may be brought to the notice of all concerned.” (Emphasis supplied) 16. Considering the stand taken by the respondents themselves, the Court came to the conclusion that the petitioner was entitled for fixation of his pay w.e.f. 1.1.1986 for the purpose of Senior Scale/ Selection Grade. 17. The said decision of the Division Bench, in my considered view, squarely covers the matter in issue in the present petition. The respondents have been taking different stand in different proceedings. 18. The seniority list (Annexure A-5) prepared on 25.8.1994 was revised behind the petitioner’s back. Final seniority list could not have been revised unless and until the petitioner was heard in the matter. The same was done behind his back in a clandestine manner. Importantly, the final seniority list had been prepared after the Director had taken a view which favoured the petitioner, vide letter dated 26.9.1990 (Annexure A-4). The list was revised in violation of and utter disregard of the letters dated 6.6.1990 and 26.9.1990. The Director could not have overruled the decision taken by the State. The subsequent decision of the Director is also not in consonance with the decision of the Government. 19. There is yet another aspect of the matter. There is nothing on record from which it can be even inferred that the benefits to be accorded in terms of Annexure A-2 were confined only to such of those persons who were initially appointed in the provincilised cadre of the State. 20. For the aforesaid reasons, the respondents action in ignoring the petitioner’s claim for being promoted to the post of Head Teacher is illegal. 21. Private respondents admittedly were junior to the petitioner. However, after a long lapse of time, it would not be desirable, at this stage to quash their promotion as Head Teachers. They have since retired. 22. 20. For the aforesaid reasons, the respondents action in ignoring the petitioner’s claim for being promoted to the post of Head Teacher is illegal. 21. Private respondents admittedly were junior to the petitioner. However, after a long lapse of time, it would not be desirable, at this stage to quash their promotion as Head Teachers. They have since retired. 22. Interest of justice would suffice, if under the facts and circumstances, the respondents are directed to also promote the petitioner as Head teacher w.e.f. 4.1.1996 with all consequential benefits. Ordered accordingly. The respondents shall take action and pay the arrears within a period of four months from today. If however, the payment is not made within the said period, thereafter the petitioner shall be entitled to interest @ 9%. 23. The petition is disposed of accordingly.