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2010 DIGILAW 3182 (PNJ)

Jiwan Dass v. State of Haryana

2010-11-30

HEMANT GUPTA, RAKESH KUMAR JAIN

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JUDGMENT Mr. Hemant Gupta, J. (Oral) - The petitioners earlier filed Civil Writ Petition No.12107 of 1995 claiming that the action of the State in preparing separate seniority list of male and female JBT Teachers is not permissible under the Punjab Educational Service Class-III (School Cadre) Rules, 1955 (for short ‘1955 Rules’). The said writ petition was disposed of by a Division Bench of this Court on 22.8.1995, when the following order was passed:- “The petition is disposed of with the directions to the Director of Secondary Education Haryana Chandigarh to treat the legal notice of the petitioners, Annexure P/4 as a representation and dispose of the same by speaking and well reasoned order. The order be passed at a very early date and preferably within a period of three months from the date of production of a copy of this order which be given dasti on payment of copying charges. If the petitioners want to give any other representation the same be given along with a copy of the order of this Court. Aug 22, 1995 Sd/- N.C. Jain Judge Sd/- H.S. Brar Judge” 2. The respondents prepared a provisional seniority list on 1.10.1995, copy of which has been appended as Annexure P.2 with the writ petition, but the respondents failed to grant selection grade in terms of the joint seniority list. The petitioners challenged the action of the respondents by way of Civil Writ Petition No. 9253 of 1997 in not granting selection grade to them but granted to the junior to the petitioners i.e. Smt. Mohan Devi and Smt. Nirmla Devi. 3. It may be stated that the petitioners are the male JBT Teachers, whereas the selection grade was granted to the aforesaid Smt. Mohan Devi and Smt. Nirmla Devi on the assumptions that they are in separate cadre of female JBT Teachers. This Court allowed the writ petition on 6.8.1998 when the following order was passed:- “What the petitioners are claiming in this writ petition is that there should be a joint seniority list of the male and female J.B.T. Teachers and on the basis of that seniority list, as much percentage of incumbents as was fixed from time to time should be granted the selection grade as per their seniority. In other words, if there are 100 male female JBT Teachers, then a joint seniority list of theirs be prepared and if 20% are the posts meant for selection grade, then out of this joint seniority list, first 40 incumbents should be placed in the selection grade. There is requirement of joint seniority of male and female JBT Teachers was held to be so in CWP No. 12107 of 1995 (Jiwan Dass and others v. State of Haryana) decided on August 14, 1995. The respondents are required to maintain a seniority list (even though notional now) showing the position of all the petitioners and similarly situated persons in the joint seniority list as and when they were appointed. As and when their turn came as per their seniority in accordance with the percentage fixed from time to time regarding the selection grade posts, they will be entitled to be placed in the selection grade. Let the respondents carry out the aforesaid directions within a period of six months and after fixation of pay accordingly the arrears be calculated and paid to the petitioners. However, the arrears would be paid only for a period of three years and two months prior to the filing of the present writ petition, which was fixed on March 17, 1997. Writ petition stands disposed of in the above terms.” 4. The petitioners filed a contempt petition alleging that the order passed by this Court is not given effect to. Subsequently, the State filed the present Civil Misc. Application to seek clarification of the order passed by this Court on 6.8.1998, pointing out that the grant of selection grade has been abolished after 1.1.1986 and that the seniority list, the basis of the claim of the petitioners for grant of selection grade, has been made effective with effect from 1.1.1995. Therefore, the benefit of selection grade can not be granted to the petitioners. It was also pointed out that there are two possible interpretations of the orders passed by this Court. The first is that since the seniority list has been made effective with effect from 1.1.1995, therefore, the benefit of the selection grade cannot be granted to the petitioners on the basis of the said Joint Seniority List as used to be given prior to 1.1.1986. The first is that since the seniority list has been made effective with effect from 1.1.1995, therefore, the benefit of the selection grade cannot be granted to the petitioners on the basis of the said Joint Seniority List as used to be given prior to 1.1.1986. The other interpretation as per the State was that if the Joint Seniority List prepared and appended with the writ petition is made applicable under the unamended Rules, then on grant of selection grade to the different Teachers, it cannot be taken back. 5. It may be noticed that the 1955 Rules were repealed with the promulgation of the Haryana Primary Education (Group-C) District Cadre Rules, 1994 on 16.9.1994 (for short ‘the 1994 Rules’). 6. It may be noticed that earlier the present application was treated as a Review Application on the oral statement made by the State counsel on 2.3.2001 and the order passed by this Court on 6.8.1998 was recalled. The said order became subject matter of challenge before the Hon’ble Supreme Court in Civil Appeal No. 361 of 2003. The Hon’ble Supreme Court vide order dated 1.12.2009 set aside the order dated 2.3.2001 passed by this Court and remitted the matter back to this Court for decision of CM No. 22911 of 2000 afresh in accordance with law. This is how, we are seized of the present application. 7. Learned counsel for the applicant-respondents has argued that in terms of the 1955 Rules, the State was required to maintain separate seniority of male and female JBT Teachers and it was only in terms of 1994 Rules, the joint seniority list was required to be maintained and, therefore, this aspect has not been considered in the order dated 6.8.1998. It is, thus, contended that the order passed by this Court on 6.8.1998 requires clarification. 8. We do not find any merit in the argument raised by the learned counsel for the applicant-respondents. 9. Rule 9 of the 1955 Rules deals with the inter-se seniority of members of service. The said Rule contemplates that the inter-se seniority of the members of the service holding the same class of posts and in the same or identical grades of pay shall be determined by the dates of their confirmations on such posts. Appendix-A defines the different posts. Clause (a) of the said Appendix deals with the men’s branch and Clause (b) with the women’s branch. Appendix-A defines the different posts. Clause (a) of the said Appendix deals with the men’s branch and Clause (b) with the women’s branch. Such provisions contain the posts of Head Masters, Science Masters, Agriculture Masters, Clerical and Commercial Masters and Assistant District Inspector of Schools. Clause (c) is for men and women i.e. in respect of the Basic Trained Teachers i.e. J.B.T. Teachers, such as the petitioners. Therefore, though there is separate cadre for men and women in respect of other categories of the posts in the school cadre, but in respect of the JBT Teachers, there is a joint seniority list even as per the 1955 Rules. Such is the position in the 1994 Rules as well. Therefore, the direction issued by this Court on 6.6.1998 does not require any clarification. 10. The apprehension expressed by the State Government that it will lead to anomalous result, is misconceived. If the Rules contemplate joint seniority list, the benefit of selection grade has to be granted on the basis of such joint seniority list. Since the benefit of grant of selection grade has not been continued after 1.1.1986, the benefit of selection grade shall be restricted only to those members of cadre, who fall within the permissible limits upto 1.1.1986. The apprehension expressed by the State that the recoveries are to be effected from those employees, who have received the benefit wrongly, is misconceived. A Full Bench of this Court in Budh Ram and others v. State of Haryana and others, [2009(2) Law Herald (P&H) (FB) 1617] : 2009(3) SCT 333, has held that the financial benefits disbursed to an employee without there being any mistake or misrepresentation on the part of such employee, cannot be recovered. 11. In view of the said fact, no further orders are called for. Hence, the present application is dismissed. 12. It need not be said that in terms of the order dated 6.8.1998, the arrears payable to the petitioners would be restricted to only 38 months i.e. from 17.3.1997. -----------------