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2012 DIGILAW 973 (HP)

State of Himachal Pradesh v. Rakesh Chand

2012-12-13

DHARAM CHAND CHAUDHARY, KURIAN JOSEPH

body2012
JUDGMENT Kurian Joseph, C.J. (Oral) Whether the JBT teachers appointed on contract basis would be entitled to pay scale revised from time to time is the question raised in these cases. Learned Single Judge held in favour and hence the appeals by the State. LPA No. 105 of 2010 is filed against the judgment dated 15.6.2010 in CWP (T) No. 781 of 2008 titled Rakesh Chand and others vs. State of H.P. and others. All other appeals except LPA No. 108 of 2012 are filed by the H.P. State Electricity Board aggrieved by the judgment of the learned Single Judge following Rakesh Chand’s case (supra). LPA No. 108 of 2012 arises from the judgment dated 30.11.2010 in CWP (T) No. 6037 of 2008. The other writ petitions have been tagged along with the appeals since the writ petitioners have sought the same relief as the writ petitioners covered by the appeals. 2. The issue pertains to the claim made by the teachers appointed on contract basis for the minimum of the pay scale revised from time to time. The State contends that the teachers will be entitled only to the amount as entered in the contract executed by them. It is not in dispute that the amount entered in the standard form of contract executed by the teachers is the minimum of the pay scale which existed at the relevant time and the principle was to appoint the contract teachers at the minimum of the pay scale. The pay scale was revised by the 5th Pay Commission with retrospective effect. The petitioners claimed the benefit of the retrospective revision in the scales. In Rakesh Chand’s case, the learned Single Judge not only held that they are entitled to the scale, but went on further to hold that on the principle of equal pay for equal work, the teachers shall be entitled to the running pay scale. However, in CWP (T) No. 6037 of 2008 leading to LPA No. 108 of 2012 in HP Rajkiya Prathmik Anubandh Adhypak Sangh vs. State of HP and another, the learned Single Judge held that the teachers will be entitled to only the minimum of the pay scale, as revised from time to time. Thus aggrieved, the State has filed the appeals. 3. We shall first deal with the issue regarding the running pay scale. Thus aggrieved, the State has filed the appeals. 3. We shall first deal with the issue regarding the running pay scale. For one thing, it has to be seen that there is no prayer made by any of the petitioners for running pay scale. Be that as it may. The undisputed factual as well as legal position is that the teachers have been appointed only on contract basis for a period of one year or till regular teacher is appointed, whichever is earlier and as per the Scheme of contract appointment, contract was to be renewed every year. Though it may not be wholly relevant, it is worth noting that when these teachers were appointed on contract basis, there was no provision in the R&P Rules for appointment on contract basis. The State had avoided regular appointments for several years even before the provision regarding the same in the R&P Rules was incorporated and had been managing with payment of a far lower salary to the teachers though in terms of duty, there was no difference at all between the contract teachers and the regular teachers. However, there was a policy for the Government on contract appointments. Since the petitioners have been appointed on such policy of the Government for contract appointment in a different scale and by a different mode of recruitment, there is no justification on their part for claiming equal pay. The mode of recruitment is different and the emoluments are also different. The State had also a policy of regular appointment being granted to the contract teachers on completion of originally eight years and presently six years. Therefore, there is no justification on the part of the writ petitioners in seeking equal pay for equal work and to that extent the State must succeed in the appeal. 4. If the Scheme of contract appointment is closely analysed it is clearly evident from the various Government orders issued from time to time that a contract teacher was to be appointed with the condition that he would be entitled only to the initial of the scale attached to the post. 4. If the Scheme of contract appointment is closely analysed it is clearly evident from the various Government orders issued from time to time that a contract teacher was to be appointed with the condition that he would be entitled only to the initial of the scale attached to the post. One of the earliest letters is made available by the learned Advocate General at the time of hearing of these appeals (though none of these contentions has been raised by the State in the writ petitions) is the letter dated 31.8.1995 issued by the Commissioner-cum-Secretary (Education) to the Government of Himachal Pradesh, which to the extent relevant reads as follows: “Now it has been decided to regularize the services of the C&V teachers serving as JBTs & Language Teachers under the provisions of the Education Code. The C&V teachers who have put in 10 years service as JBTs/LTs in the Education Department shall be issued special JBT/LT certificates. On the basis of the certificates, the C&V teachers shall possess the professional qualifications which are essential for being appointed as JBTs/LTs. Those C&V teachers who are serving as JBTs/LTs but do not fulfil the condition of 10 years service shall not be removed from service but they shall be issued the special certificate on fulfilling the conditions. The regularization of such C&V teachers shall be subject to their giving an option of their willingness to become JBTs/LTs. Such C&V teachers shall be placed at the initial of their scale on regularization.” In the same order, it has been further clarified as follows: “During contractual appointments, they will be paid salary of the minimum of JBT scale with full allowances admissible from time to time but no increments shall be given.” 5. That is the only policy made available to the Court with regard to the appointment on contract basis, which in unambiguous terms has made it clear that JBT teachers appointed on contract basis, during the period of contract appointment would be entitled to salary at the minimum of JBT scale with full allowances admissible from time to time. 6. All that the writ petitioners have prayed before this Court is only for the minimum of the JBT scale granted by the Government from time to time to the JBT teachers. 7. 6. All that the writ petitioners have prayed before this Court is only for the minimum of the JBT scale granted by the Government from time to time to the JBT teachers. 7. That policy has never been varied by the Government and one fails to understand as to why the State has filed LPA No. 108 of 2012 since the learned Single Judge in CWP (T) 6037 of 2008 has only declared that JBT teachers will be entitled to the minimum of the JBT scale granted from time to time. 8. In another communication from the Directorate of Primary Education dated 10th November, 2000, it has further been clarified by the Directorate as follows: “It is thus evident that the contract appointee is entitled to Allowances including Dearness Allowance, HRA & CA at the minimum of the scale relevant to the category to which he has been recruited and the DA has continued to be paid to them prior to 1.1.1996 and even thereafter in accordance with the above provision.” 9. Still further on 23.5.2003, the Principal Secretary (Education) to the Government of Himachal Pradesh has clarified that the JBT teachers will be entitled to the minimum of the scale attached to the post revised from time to time and whether any fresh agreement has been executed or not is irrelevant. That has been produced as Annexure A-5 in CWP (T) No. 781 of 2008 leading to LPA No. 105 of 2010. To the extent relevant, the order reads as follows: “So far as the question of calculating the rate of wages and their admissibility from time to time on the execution of contractual appointment agreement is concerned, it has been made clear in the policy of contract under title “Tenure of Contract” which is also a part of the agreement form vide (Sl. No.1 and sub clause I of Sl. No.4 wherein the tenure of the contract will end on the end of the last working day of the academic session without any notice automatically which means that the contract will be signed afresh on the next/successive session meaning thereby that the basic pay and allowances which would be applicable on the date of executing agreement would be payable to the contractual appointee teachers/lecturars (School Cadre) and not of the date of issuing the instructions/contractual policy. Hence the contractual appointee Teachers/Lecturars (School Cadre) are entitled wages on the basic pay and allowances applicable/notified on the date of executing fresh agreement with them as per the terms and conditions.” 10. That letter has been further clarified by the Principal Secretary (Education) by another letter dated 30th July, 2003. We may extract the text of the letter as such: “Reference to your letter No.EDN-H(4)-3(c)17/02 dated 22.7.2003 on the subject noted above. The matter has been examined in this department and it is informed that the instructions issued vide this deptt. Letter of even number dated 23rd May, 2003 are very clear and the wages to the contractual teachers/lecturers (Schools) are calculated on the basic pay and allowances of the respective posts on the date of executing agreement between the contractual appointee and the authorized authority of the department applicable at their locations as is being given to their counterparts appointed on regular basis. Since the scale which is being indicated in the agreement i.e. 1640-2925 and 1800-3200 or any pre-revised scale of the respective post did not exists now at all. Therefore, the same is clear violation of contractual policy whereunder no such scale had been indicated specifically at the relevant time. The term “Execution of fresh Agreement” has also been clearly defined under the title “Tenure of Contract” under the said policy further elaborated vide above quoted instructions where contract agreed will and automatically on the last day of academic session and be made/executed for the next academic session. Hence the term “Execution of fresh agreement” between the parties means, “an agreement which would be executed after the ending of academic session and commencing of next academic session.” So far as the question of obtaining stay by some of the contractual appointee from the Court is concerned, Court has not bar the department to execute fresh agreement after the end of each academic session and only given relief to the candidates for ensuring of their contract for the next academic session which would also needs no further clarification in view of this department instructions of even number dated 19.2.2001 (copy enclosed herewith for ready reference). The practices of indicating pre-revised basic pay and allowances and of non executing fresh agreement as referred to your letter is altogether violation of the contractual policy notified by the Government. The practices of indicating pre-revised basic pay and allowances and of non executing fresh agreement as referred to your letter is altogether violation of the contractual policy notified by the Government. The instructions issued by the Government on 23.5.2003 automatically modify the clause indicating of pre-revised scale as the agreement executed between the candidate and the authorized authority during their year from the date of issue of these instructions and arrears if any shall also be paid to them from the date of issue of the above instructions accordingly to avoid any legal complications. If any violation of these instructions is made by any implementing authority, they shall be personally responsible for the consequences arisen on this account on legal complications and any financial implications involved on courts decision/directions, they shall be recovered from their salary being personally responsible for the same.” 11. It may be significant to note that this clarification has been issued on a query with regard to certain doubts. 12. Learned Advocate General has referred to letter dated 14.10.2003 from the Finance Department of the Government stating that two letters referred to above dated 23.5.2003 and 30.7.2003 had been withdrawn. We may first reproduce the letter dated 14.10.2003 as such: “This is with reference to your office letter No. Shiksha-II-Kha (12)2/99 dated 23rd May, 2003 and letter of even number dated 30.7.2003 on the above subject. Both these letters carrying clarification regarding the amount of wages to be paid to the contractual Trained Graduate Teachers /Lecturers (School Cadre) having wider financial implications, have been issued without the prior concurrence of Finance Department which was mandatory under relevant provision of Rules of Business of the Govt. of Himachal Pradesh, 1971. Hence it has been decided that the Education Department shall withdraw the above referred letters forthwith under intimation to Finance Department. As a consequence, the status obtaining before 23.5.2003 be maintained with regard to the wage-structure of the said categories of the contractual appointees.” 12. Though it was so stated in the Government letter that the Education Department, which is the Administrative Department as far as writ petitioners are concerned, would withdraw the letters dated 23.5.2003 and 30.7.2003, there is nothing on record to show that the Administrative Department had actually withdrawn those letters. Though it was so stated in the Government letter that the Education Department, which is the Administrative Department as far as writ petitioners are concerned, would withdraw the letters dated 23.5.2003 and 30.7.2003, there is nothing on record to show that the Administrative Department had actually withdrawn those letters. That Education Department would not have withdrawn the letters dated 23.5.2003 and 30.7.2003 is clear from subsequent letter of the Finance Department dated 10.6.2005, wherein it is very clearly stated as follows: “However, all other allowances and entitlements will continue to be calculated on the basis of basic pay alone without taking into account the element of Dearness Pay.” 13. The Finance Department has issued another letter dated 3rd December, 2009 with regard to certain clarifications regarding revision of emoluments of contract employees w.e.f. 1.12.2009 wherein referring to a letter dated 9.5.2006, it has further been clarified that the previous formulation regarding payment of contractual salary was equal to the initial of the pay scale plus Dearness Pay as prescribed for the particular relevant post. The relevant paragraph reads as follows: “The undersigned is directed to refer to the subject cited above and to say that as a result of the prescribing of contract method as one of the modes of recruitment in the different categories of posts in the Government, the contractual emoluments payable to such persons were determined by FD vide letter No. Fin-F(A)-(11)-6/06 dated 9th May, 2006. The previous formulation regarding payment of contractual salary was equal to the initial of the pay scale plus Dearness Pay as prescribed for the particular relevant post.” 14. Thus, there appears to be no doubt in the mind of the Government regarding the entitlement for the basic pay, namely, the initial of the pay scale attached to the post of JBT teacher. 15. Learned Advocate General has vehemently contented that the teachers having executed agreements for a particular amount, so long as there is no novation on the terms of the agreement, the teachers are not entitled to claim revised pay scale. We are afraid that the contention cannot be appreciated at all. 15. Learned Advocate General has vehemently contented that the teachers having executed agreements for a particular amount, so long as there is no novation on the terms of the agreement, the teachers are not entitled to claim revised pay scale. We are afraid that the contention cannot be appreciated at all. First of all, it has to be seen that standard form agreements were got executed by the Education Department from the teachers at the time when the State itself was not clear as to what is the scale available to the contract teachers at the time of execution of the agreement since the contract was to be executed every year. Therefore, the column regarding the basic pay was left blank in the draft agreement and the scale was to be entered at the time of execution of the agreement and as per the instructions of the Government, the contract was to be renewed from time to time and in case the contract is not renewed, the consequence was also clarified by the Government to the effect that the basic pay available to the teachers would be the initial of the scale attached to the post of JBT teachers from time to time. The relevant clause 4(v) reads as follows: “4(v) The Government of Himachal Pradesh shall pay the teacher so long the teacher shall remain in the service and actually perform his/her duties monthly honorarium equal to the basic pay in the pay scale of Rs.________ and other allowance admissible at the station on the basic pay including HRA and CCA. The teacher shall not be entitled to any further benefits.” (All emphasis supplied) 16. The provision in the standard form agreement would clearly show that it is the basic pay in a scale that was provided and whenever the scale underwent a change, the consequential change should stand reflected and implemented in the case of those contract appointees, even if the agreements were not got executed from them every year, as clarified by the Government itself in the letter dated 30.7.2003. 17. Finally, the learned Advocate General has contended placing reliance on the judgment in Jai Dev Gupta vs. State of Himachal Prasdesh and another, AIR 1998 SC 2819 in moulding the relief that the benefits may be limited to three years. 17. Finally, the learned Advocate General has contended placing reliance on the judgment in Jai Dev Gupta vs. State of Himachal Prasdesh and another, AIR 1998 SC 2819 in moulding the relief that the benefits may be limited to three years. We do not think that in the facts and circumstances of the present case that judgment would be of any help to the State. Himachal Pradesh Rajkiya Prathmik Anubandh Adhyapak Sangh had filed the OA before the Tribunal in the year 1999, on 13.7.1999. The pay revision order was issued on 20.1.1998 giving retrospective effect to the revision w.e.f. 1.1.1996. It is pointed out that the Association is the only Association of the contract JBT teachers and that they represent all the JBT teachers appointed on contract basis. No doubt, Rakesh Chand and others approached the Tribunal only in 2008. They are also the members of the Himachal Pradesh Rajkiya Prathmik Anubandh Adhyapak Sangh and other writ petitions are also the members of that Union. Having had their association to take up their cause, it was unnecessary on the part of the other teachers to have filed independent applications before the Tribunal or writ petitions before this Court. The law has been declared by the Court to the effect that the contract JBT teachers would be entitled to the initial of the pay scale attached to the post of JBT appointed on regular basis and revised from time to time. 18. In the above circumstances, the appeals and the writ petitions are disposed of as follows: The direction in the judgment in Rakesh Chand’s case in CWP (T) No. 781 of 2008 for granting the running pay scale to the JBT teachers from the date of their initial appointment is set aside. However, it is held that the JBT teachers appointed on contract basis will be entitled to the initial of the pay scale attached to the post of JBT teachers and revised from time to time. It is also clarified that the principle that is applied in the case of the JBT teachers in equal force would apply to the School Lecturers appointed on contract basis. LPA No. 108 of 2012 is dismissed. All other appeals are partly allowed and the writ petitions are disposed of, so also the pending applications, if any.