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2012 DIGILAW 148 (HP)

Neena v. Government Of Himachal Pradesh Through Its Secretary (Education)

2012-04-02

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. - This judgment shall dispose of the present writ petition and also CWP (T) No. 11632 of 2008, which initially were filed before the erstwhile Himachal Pradesh State Administrative Tribunal and on its abolition, transferred to this Court for disposal in accordance with law, as common questions of facts and law are involved to be adjudicated upon therein. 2. The petitioner in this writ petition and connected petition, being working in privately managed schools in District Mandi, were interviewed by the second respondent on 25.5.2000 for selection and appointment as Lecturers in School Cadre in Hindi and History subjects respectively. They were selected and appointed as such on special contract basis, in the pay scale of Rs. 1800-3200, at Rs. 1800/- fixed plus allowances. The petitioner in connected writ petition has filed her appointment letter, dated 29.9.2000 as Annexure PB. The petitioner in this writ petition has also filed the agreement, she executed to this effect on 7.4.2004, Annexure PC. Consequent upon their appointments as Lecturers (School Cadre) in the subjects of Hindi and History, petitioners were allowed to draw their salary @ Rs. 1800/ - fixed plus allowances @ 203%. The DA at 203% was ordered to be freezed vide Circular dated 1.3.2002, Annexure PA/1. The scale of Rs. 1800-3200 against which the petitioners were initially appointed was subsequently revised to Rs. 6400-10640 + allowances as admissible from time to time. The petitioners, alongwith other similarly situated Lecturers (School Cadre) had also become entitled to the payment of their salary, as per revised pay scale. The respondents revised the pay scales of regular/ adhoc Lecturers vide Circular No. Shiksha-II-Kha(17)2/93, dated 23.5.2003, circulated by respondent No. 2 vide Endorsement No. Edn. H (1) B (2) 8/03-IV, dated 2.6.2003 and allowed revised pay scale to the tune of Rs. 6400-10640 + allowances, w.e.f. 1.1.1996 to special contract lecturers, like the petitioners also w.e.f . 23.5.2003 (Annexure PA) to this writ petition. The same was, however, later on withdrawn vide another Circular dated 22.10.2003. Against such action on the part of the respondents, some of the lecturers, similarly situated to the petitioners, had approached the erstwhile Himachal Pradesh Administrative Tribunal and obtained stay order. One of such orders is Annexure PD/A to this writ petition. The petitioners have filed these writ petitions, however, unfortunately no stay order was granted in their favour. 3. Against such action on the part of the respondents, some of the lecturers, similarly situated to the petitioners, had approached the erstwhile Himachal Pradesh Administrative Tribunal and obtained stay order. One of such orders is Annexure PD/A to this writ petition. The petitioners have filed these writ petitions, however, unfortunately no stay order was granted in their favour. 3. The action on the part of the respondents in withdrawing the revised pay scale granted to them has been assailed on the grounds, inter alia that the same is not only illegal, but discriminatory also. The present, rather, is stated to be a case of hostile discrimination, as according to the petitioners, all contractual lecturers, similarly situated to them, are drawing their salary in the revised pay scale of Rs. 6400-10640 + allowances and as such, the respondents could have not made two equals as unequals and draw unintelligible differentia between the similarly situated persons, which is legally impermissible. 4. In the light of such submissions made in these writ petitions, a prayer has been made to issue a direction to the respondents to grant the petitioners the revised pay scale of Rs. 6400-10640 + allowances w.e.f. 23.5.2003, with all consequential benefits, together with interest @ 9% per annum. A further prayer has been made to set aside the impugned order, Annexure PA/1, dated 1.3.2002, vide which the DA was freezed at 203%, with all consequential benefits. 5. The respondents have failed to file reply to the connected writ petition, despite number of opportunities granted in this behalf. 6. In reply to this writ petition, while admitting the entire case as set out in the writ petition, it is submitted that since the Circular dated 23.5.2003 qua extending the benefit of revised pay scale to the contractual lecturers, like the petitioners, was issued without the concurrence of the Finance Department, as essentially required under the 1971 Rules of Business of Government, therefore, the same was rightly withdrawn by the first respondent, vide Circular dated 22.10.2003, in pursuance to the directions issued by the Finance Department vide its letter dated 14.10.2003. It has also been pointed out that the petitioner at that time had accepted the contractual appointment and entered into an agreement, agreeing thereby to be governed by pre-revised pay scale of Rs. It has also been pointed out that the petitioner at that time had accepted the contractual appointment and entered into an agreement, agreeing thereby to be governed by pre-revised pay scale of Rs. 1800-3200, therefore, her services were governed strictly in accordance with the terms and conditions of the contract/ agreement, she entered into with the respondents. The respondents have rectified the mistake by withdrawing an erroneous order, having no legal sanctity in the eyes of law, hence the petitioner allegedly are not entitled to seek the benefit of the revised pay scales. They, rather, are entitled to the pre-revised pay scale of Rs. 1800-3200. 7. The petitioner, in rejoinder, has denied the contentions to the contrary in the reply being wrong and reiterated the entire case as set out in this petition. It is reiterated that the petitioner s are entitled to the revised pay scale of Rs. 6400-10640 + DA @ 50%. It has further been pointed out that virtually such stand of the petitioner has been accepted by the respondents by issuance of Circular No. Fin. F (A) (II) 6705, dated 9.5.2006, Annexure PX by the Principal Secretary (Finance) to all Administrative Secretaries, including the first respondent. The second respondent has allegedly endorsed the copies of Annexure PX to all Deputy Directors of Education in the State vide Endst. No. EDN.- H(I) B(15)1/2005-(Imp. Instt), dated 17.5.2006, Annexure PY and directed thereby to ensure the strict compliance thereof. 8. I have heard Shri Lalit Sehgal, Advocate learned counsel for the petitioners and Shri J.K.Verma, learned Dy. Advocate General, on behalf of the respondents and also gone through the entire record. 9. This can be said to be an unfortunate case where only the petitioners were deprived of the grant of revised pay scale with usual allowances and may be due to no interim order could be initially passed in these writ petitions, because other similarly situated lecturers, appointed on special contract basis have since been released the revised pay scale, with usual allowances and they are drawing their salary accordingly. One of such instance is interim order dated February 19, 2004, passed in O.A. No. 362 of 2004, titled Dinesh Kumar Sankhyan v. State of Himachal Pradesh and others (Annexure PD/A) to this petition. 10. One of such instance is interim order dated February 19, 2004, passed in O.A. No. 362 of 2004, titled Dinesh Kumar Sankhyan v. State of Himachal Pradesh and others (Annexure PD/A) to this petition. 10. Above all, the law on the point in controversy is no more res-integra as the same has been set at rest in Nek Ram and others v. State of Himachal Pradesh and others, CWP (T) No. 14232 of 2008, a case filed by similarly situated lecturers appointed on special contract basis in the pay scale of Rs. 1800-3200 ( Rs. 1800/- fixed plus allowances). 11. In another case, titled Rajesh Goyal v. State of Himachal Pradesh and others, CWP (T) No. 11098 of 2008, learned Single Judge of this Court, vide judgment dated 7.12.2009, had set aside and quashed the Circular dated 22.10.2003 issued by the second respondent, withdrawing thereby the revised pay scale of Rs. 6400-10640 + allowances, granted to the contractual lecturers like the petitioners and also the directions of Finance Department issued vide letter dated 14.10.2003, directing thereby the second respondent to withdraw the earlier circular dated 23.5.2003, whereby persons, similarly situated to the petitioners, were granted the revised pay scale of Rs. 6400- 10640 + allowances. This judgment squarely covers the claim of the petitioners in both these writ petitions. 12. Not only this, vide another judgment dated 21.12.2012 of learned Single Judge in Jagdish Kumar v. State of Himachal Pradesh and others, CWP (T) No. 11132 of 2008, order of recovery on account of payment of salary as per the benefit of revised pay scale granted to the petitioner in that writ petition, similarly situated to the petitioners in these writ petitions, was set aside and the action of the respondents reducing the salary of the petitioner was also declared illegal and invalid. 13. In the light of the law laid down by our own High Court in the judgments (supra) and also by the Hon'ble Supreme Court, relied upon therein, the present are the cases of sheer discriminatory treatment given to the petitioners. They have been discriminated against similarly situated persons in the matter of payment of their salary as per revised pay scale of Rs. 6400-10640 + allowances. They have been discriminated against similarly situated persons in the matter of payment of their salary as per revised pay scale of Rs. 6400-10640 + allowances. The petitioners are discharging the same duties which are being discharged by their counter parts working on regular/ adhoc basis, and by now even by the similarly situated lecturers, appointed on contractual basis. Thus, they cannot be denied the benefit of the revised pay scale, particularly when the respondents have failed to make out a case in this behalf, as the only plea raised in reply to the writ petition is that the Circular dated 23.5.2003 whereby benefit of revised pay scale to the tune of Rs. 6400-10640 + allowances was granted to the Lecturers (School Cadre) appointed on special contract basis, like the petitioners, ha d to be withdrawn, pursuant to the Circular dated 22 .10.2003, issued upon the direction of Finance Department vide letter dated 14.10.2003, is not available to them, because the same having been disbelieved by this Court in its judgment dated 7.12.2009 in CWP (T) 11098/2008 and CWP (T) 11132 of 2008, cited supra. 14. In the light of what has been stated hereinabove, both the writ petitions deserve to be allowed and the petitioners held entitled to the grant of revised pay scale of Rs. 6400-10640 + usual allowances. 15. Consequently, both the writ petitions are allowed. The action of the respondents, withdrawing the benefit of revision of pay scale vide Circular dated 22.10.2003 issued on the basis of the so called directions of the Finance Department, vide order dated 14.10.2003, is hereby quashed and set aside. The petitioners are held entitled to the revised pay scale of Rs. 6400-10640 + usual allowances with all consequential benefits granted to them and other similarly situated persons vide Circular No. Shiksha-II-Kha(17)2/93, dated 23.5.2003. There shall be a direction to the second respondent to release the arrears on account of revised pay to the petitioners within three months from today, failing which, together with interest @ 6% per annum from the date of institution of these writ petitions in the erstwhile HP Administrative Tribunal till realisation of the entire amount and in that event, the amount of interest shall be recoverable from the erring officer(s)/official(s). Both the writ petitions stand disposed of accordingly. Both the writ petitions stand disposed of accordingly. Let a copy of this judgment be placed on the record of connected CWP (T) No. 11632 of 2008.