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Uttarakhand High Court · body

2014 DIGILAW 171 (UTT)

Anusuya Prasad Purohit v. State of Uttarakhand

2014-04-07

SUDHANSHU DHULIA

body2014
Judgment : The petitioners, before this Court, are Assistant Teachers (L.T. Grade), who are presently teaching in Government Higher Secondary Schools in the State of Uttarakhand. The controversy, which they have raised before this Court, in short, is that their claim before the Education Authorities for calculating their seniority from an earlier date has been rejected. Hence, the present writ petition. 2. All the petitioners before this Court were appointed in the year 2009 as Assistant Teacher (L.T. Grade) by way of “adjustment” i.e. from their parent cadre in “Elementary Schools” to Higher Secondary Schools. The petitioners were initially appointed as Assistant Teacher in Government Primary Schools and, thereafter, some of them were promoted as Head Master in Government Primary Schools and others were promoted as Assistant Teachers in Senior Elementary Schools (Class VI to VIII), which is known as “Junior High School”. At the relevant point of time i.e. in the year 2009, their services were adjusted as Assistant Teacher (L.T. Grade) in Government Secondary Schools, in the year 2009. The common factor in the case of all the petitioners is that they were either teacher in Government Junior High Schools or Head Master in Government Primary Schools prior to their so called “adjustment” on transfer. Further, it must be noted here that the pay scale of Head Master in a Primary School and pay scale of an Assistant Teacher in Junior High School is the same. 3. In the State of Uttarakhand Rules were framed under Article 309 of the Constitution of India which are known as “Uttaranchal Subordinate Education (Trained Graduate Grade) Services Rules, 2006 (from hereinafter referred to as “the Rules of 2006”). Inter alia, the aforesaid Rules provide for selection/appointment to the post of Assistant Teacher (L.T. Grade). Under the said Rules of 2006, 70% of the posts were to be filled by way of direct recruitment. 25% of the posts were to be filled from amongst the Head Masters of Primary School, Assistant Teacher Junior High School and Assistant Teacher Government Model School working under the Government Elementary Education by way of adjustment. Under the said Rules of 2006, 70% of the posts were to be filled by way of direct recruitment. 25% of the posts were to be filled from amongst the Head Masters of Primary School, Assistant Teacher Junior High School and Assistant Teacher Government Model School working under the Government Elementary Education by way of adjustment. The remaining 5% of posts were to be filled by way of departmental written examination from amongst the Assistant Teacher Primary School, Head Master Primary School, Assistant Teacher Junior High School and Assistant Teacher Government Model School working under Government Elementary Schools who fulfill qualification prescribed under Rule 8 of Rules of 2006. 4. All the petitioners, before this Court, were appointed under the 25% quota reserved for such teachers and their case before this Court is that they were not “promoted” to the post of Assistant Teacher (L.T. Grade) but what happened in their case was a simple “adjustment”! According to Rule 5 of the Rules of 2006, in the case of the present petitioners, under the 25% quota defines about “adjustment” and not “promotion” whereas in the case of 5% quota, the word “promotion”, is used, as 5% of the posts are to be filled from amongst the Primary School Teachers by way of departmental written examination. It further clarifies as to who are the teachers who will have to be adjusted against 25% of the vacant post of Teachers of (L.T. Grade). Rule 16 of the Rules of 2006 clearly speaks about recruitment by way of adjustment/promotion, which shall be made on the basis of seniority, subject to the rejection of unfit. It further states that only such teachers will be adjusted who “are willing for such adjustment”. It further says that such teachers who were to be “adjusted”, must have the qualifications required for the post of Assistant Teacher (L.T. Grade). These are the same qualifications which a direct recruitee should have against the 70% posts of direct recruitment. Therefore, although 25% posts were to be “adjusted” from amongst the teachers, such as petitioners, who were either teaching as Assistant Teacher in Junior High School or who were working as Head Master in Primary School, this had to be done by way of consideration of seniority and with “consent” of such teachers. 4. Therefore, although 25% posts were to be “adjusted” from amongst the teachers, such as petitioners, who were either teaching as Assistant Teacher in Junior High School or who were working as Head Master in Primary School, this had to be done by way of consideration of seniority and with “consent” of such teachers. 4. Consequently, options were invited by the State Government and willingness of such teachers who were willing to be “adjusted” as Assistant Teacher (L.T. Grade) was sought. Admittedly, the petitioners gave their consent and opted for the post of Assistant Teacher (L.T. Grade) and, consequently, they were adjusted vide order dated 30.05.2009 and other subsequent orders on different dates. 5. The pay-scale of the petitioners who at the relevant time were Assistant Teacher, Junior High School (or Principal or Head Master, Primary School) is the same (i.e. Rs.5500-9000) as the pay scale of Assistant Teacher (L.T. Grade). Indeed the petitioners received the said pay scale in the parent department i.e. Assistant Teacher Junior High School much earlier than the year 2009 when they were adjusted as Assistant Teacher (L.T. Grade). The question is whether their claim of seniority of Assistant Teacher (L.T. Grade) from the date they were receiving the same salary as teacher/Head Master in elementary schools, is justified or not? Their claim has already been rejected by the State Government vide order dated 05.07.2011. Although the order is not a detail order as all it says that it is as per the Rules of 2006, seniority is to be calculated from the date they were “adjusted” as Assistant Teacher (L.T. Grade). 6. Learned counsel for the petitioners before this Court has relied upon various decisions of this Court as well as the decision of Hon’ble Apex Court in order to substantiate his arguments and his claim regarding calculation of seniority from an earlier date. 7. Earlier the petitioners were working in the erstwhile State of Uttar Pradesh as Assistant Teachers in Government Primary Schools. At that time, the Elementary Education was under the control of a Board known as “Uttar Pradesh Basic Shiksha Parishad”. Such teachers who were imparting education were technically not Government employees but they were the employees of the Board. 7. Earlier the petitioners were working in the erstwhile State of Uttar Pradesh as Assistant Teachers in Government Primary Schools. At that time, the Elementary Education was under the control of a Board known as “Uttar Pradesh Basic Shiksha Parishad”. Such teachers who were imparting education were technically not Government employees but they were the employees of the Board. After the creation of the new State of Uttarakhand, under a Parliamentary legislation, known as “the U.P. Reogriansation Act, 2000”, on 09.11.2000, the State of Uttarakhand came into existence and such teachers were transferred to Uttarakhand cadre. The Government of Uttarakhand, for regulating the services of the teachers, enacted a legislation, which is known as “Uttarakhand School Education Act, 2006”. Under the said Act, even Elementary Education came directly under the Government and as a matter of policy the Government decided not to have a similar Board as was existing in the State of U.P. (i.e. Basic Shiksha Parishad). The Government of Uttarakhand, however, calculated the seniority of such employees of the Board, who were earlier working under the Board from the date when the Uttarakhand School Education Act, 2006 came into force. Section 58 of the Act reads as under:- “58. The services of teachers and employees of Basic Shiksha Parishad to be under the control of State Government – All the teachers, officers and employees of Basic Shiksha Parishad, including any supervising or inspecting officer or employee working immediately before the date of the commencement of this Act, shall be transferred to the State Government and they shall become teachers, officers and employees of the State Government and their services shall be governed by the service rules prescribed by the State Government.” 8. The Government Order dated 24.06.2006, which says that w.e.f. 22.04.2006, the services of such teachers shall be transferred to Uttarakhand Government and their seniority was calculated from that date only i.e. on 24.06.2006. This Government Order was challenged before this Court. The learned Single Judge of this Court allowed the said writ petition [WPSS No. 270 of 2009] and passed an order that the seniority would be calculated from the date of initial substantive appointment and not from 2006. The Government filed Special Appeal which was dismissed. 9. This Government Order was challenged before this Court. The learned Single Judge of this Court allowed the said writ petition [WPSS No. 270 of 2009] and passed an order that the seniority would be calculated from the date of initial substantive appointment and not from 2006. The Government filed Special Appeal which was dismissed. 9. Drawing the same analogy, now the petitioners contend that they too have not been promoted as Assistant Teacher (L.T. Grade) but simply “adjusted” under the new cadre where they were earlier carrying the same pay scale as they are getting now. In any case, it would not be a promotion. Therefore, the seniority must be calculated from the date, they started getting the pay scale of Assistant Teacher (L.T. Grade). 10. The learned counsel for the petitioners further relied upon a judgment of Hon’ble Apex Court rendered in the case of Anand Chandra Dash Vs. State of Orissa & others, reported in (1998) 1 UPLBEC 499. In the said case employees of Revenue Department were transferred and their services were merged to the Labour Department, However, the Government refused to give them the seniority which they had in the Revenue Department and was calculating the seniority from the date of merger. The Hon’ble Apex Court held this action to be wrong and therefore, the petitioner claims the same relief. 11. In the case before the Hon’ble Apex Court, however, there was an essential difference and that difference was that the employees who were working in the Revenue Department were never given a choice to be transferred/merged with the Labour Department. In fact, the specific case before the Hon’ble Apex Court was that there services were merged with the Labour Department in spite of their unwillingness and inspite of their denial letter. 12. It was under that circumstances where an employee who had even not given his willingness, where services of unwilling employee were merged with the other Department without giving any option, in that case the Hon’ble Apex Court had granted such benefit. In the present case, it is an admitted fact that before being adjusted in the Higher Secondary School as Assistant Teacher (L.T. Grade) options were called and services of only such teachers were merged who were willing to give such an option. In the present case, it is an admitted fact that before being adjusted in the Higher Secondary School as Assistant Teacher (L.T. Grade) options were called and services of only such teachers were merged who were willing to give such an option. The petitioners then relied upon Rule 22 of the Rules of 2006 and states that they gave their willingness to be adjusted as Assistant Teacher (L.T. Grade). Rule 22 of the Rules of 2006 reads as under:- “22. Seniority. (1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined according to the Uttaranchal Government Servants Seniority Rules, 2002. The seniority of persons in any category of post shall be determined from, the date of the orders of substantive appointment and if two or more persons are appointed together, by such order in which their names are arranged in the appointment order: Provided that if the appointment order specifies a particular back date with effect from which a person substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case, it will mean the date of issue of the order: Provided also that if after a selection more than one appointment orders are issued in relation to a selection, the seniority shall be such as is mentioned in the combined appointment order issued under Rule 19 (3). (2) The Seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by the Selection Committee: Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. (3) The Seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. (3) The Seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. (4) Where appointments are made both by promotion and direct recruitment or from more than one source and the respective quota of the sources is prescribed, the inter se seniority shall be determined by arranging the names in a cyclic order in a combined list, prepared in accordance with Rule 18, in such manner that the prescribed percentage is maintained: Provided that – (i) Where appointments from any source are made in excess of the prescribed quota, the persons appointed in excess of quota shall be pushed down, form seniority to subsequent year or years in which there are vacancies in accordance with the quota. (ii) Where appointments from any source fall short of the prescribed quota and appointments against such unfilled vacancies are made in subsequent year or years, the persons so appointed shall not get seniority of any earlier year but shall get the seniority of the year in which there appointments are made, so however, that in the combined list of that year, to be prepared under this Rule, their names shall be placed at the top followed by the names, in the cyclic order, of the other appointees. (iii) Where, in accordance with the Rules or prescribed procedure, the unfilled vacancies from any source could in the circumstances mentioned in the relevant Rule or procedure be filled from the other source and appointment in excess of quota are so made, the persons so appointed shall get the seniority of that very year as if they are appointed against the vacancies quota. (iv) The seniority of a person shall be determined in the concerned branch of his regional cadre in which he was appointed.” 12. Learned counsel for the petitioners state that seniority has to be calculated as per the Uttaranchal Government Servants Seniority Rules, 2002, according to which the seniority has to be calculated on the basis of the substantive appointment in the cadre. We will revert back to this aspect in a while. The learned counsel for the petitioners relied upon paragraph 15 of a judgment of Hon’ble Apex Court in S.P. Shivprasad Pipal Vs Union of India & others, reported in AIR 1998 SCC 1982, which reads as under:- “15. We will revert back to this aspect in a while. The learned counsel for the petitioners relied upon paragraph 15 of a judgment of Hon’ble Apex Court in S.P. Shivprasad Pipal Vs Union of India & others, reported in AIR 1998 SCC 1982, which reads as under:- “15. A decision to merge such cadres is essentially a matter of policy. Since the three cadres carried the same pay scale at the relevant time, merging of the three cadres cannot be said to have caused any prejudice to the members of any of the cadres. The total number of posts were also increased proportionately when the merger took place so that the percentage of posts available on promotion was not in any manner adversely affected by the merger of the cadres.” 13. The petitioners now rely on the above judgment in which the question was of a merger of three different cadres into one and thereafter the determination of the seniority was to be made. The Hon’ble Apex Court in S.P. Shivprasad Pipal (supra) came to the conclusion, which reads as under:- “16. The appellant, however, contends that as a result of the merger his promotional chances have been very adversely affected because his position in the seniority list has gone down. Rule 9 of the Central Labour Service Rules, 1987 under which the merger is effected, lays down the Rules of seniority. It provides that the inter se seniority of the officers appointed to the various grades mentioned in schedule I at the initial constitution stage of the service shall be determined according to the length of regular continuous service in the grade subject to maintenance in the respective grade of inter se seniority of officers recruited in their respective original cadres. The proviso to this Rule prescribes that although Assistant Labour Commissioner (Central), Labour officer an Assistant Welfare Commissioner shall be equated, all Assistant Labour Commissioners (Central) holding such posts on or before 31st of December, 1972 shall be en block senior to labour Officers and (2) senior labour officers and Regional Labour Commissioners shall be equated. But all Regional labour Commissioners holding such posts on or before the 2nd of March 1980 shall be en block senior to the senior labour officers. 17. Explaining the proviso the respondents have said that before 31st of December, 1972 Assistant labour commissioners were in a higher pay scale than labour officers. But all Regional labour Commissioners holding such posts on or before the 2nd of March 1980 shall be en block senior to the senior labour officers. 17. Explaining the proviso the respondents have said that before 31st of December, 1972 Assistant labour commissioners were in a higher pay scale than labour officers. The parity between their pay scales came about only from January 1973. That is why to preserve their inter se position, Assistant Labour Commissioners appointed prior to 31st of December, 1972 have been placed above Labour Officers. Similarly, Regional Labour commissioners drew a higher pay scales than senior labour officers prior to 1980. The parity has come about in 1980 and hence Regional labour Commissioners holding such posts on or before 2nd of March, 1980 have been placed above senior labour officers.” 14. But, before this Court there is no case of “merger” of two cadres into one. The two cadres remain different, however, under a Statutory provision, 25 % of the posts in Assistant Teacher (L.T. Grade) are to be filled by way of adjustment from the petitioners, who were earlier working as Assistant Teacher in Junior High Schools. Therefore, the petitioners case is entirely different than what would be in the case of “merger”. 15. The learned counsel for the petitioners further argues that not only they were getting the higher pay-scale in the earlier cadre but some of the petitioners have also got selection grade and as per the selection grade the case of the petitioners would be that many of the direct recruitees as Assistant Teacher (L.T. Grade) though appointed as Assistant Teachers (L.T. Grade) even prior to the petitioners have not yet received the selection grade, therefore, the petitioners cannot be equated with them. 16. On the other hand, Mr. B.D. Kandpal, learned Additional Advocate General appearing for the State of Uttarakhand has argued that the terms of the Rules of 2006 as well as the Government Order clearly show that the option was called from the petitioners for the said “adjustment” and petitioners willingly responded to that. It is not the case of the petitioners before this Court that even though they were unwilling to be “adjusted” yet Government forced them to be adjusted as Assistant Teacher (L.T. Grade). It is not the case of the petitioners before this Court that even though they were unwilling to be “adjusted” yet Government forced them to be adjusted as Assistant Teacher (L.T. Grade). It is very much clear that the petitioners were asked an option and in turn they showed their willingness and only thereafter were they absorbed as Assistant Teacher (L.T. Grade). The entire case of the petitioners rests on two points. Firstly, as Assistant Teacher in Junior High School they were getting the same pay scale as they are getting in the Assistant Teacher (L.T. Grade) and secondly, that they have not been promoted but they have been adjusted. Therefore, the petitioners not being “promoted” as Assistant Teacher (L.T. Grade) but only adjusted must be given the benefit of seniority which they have been wrongly denied. 17. Learned counsel for the State on the other hand argues that the appointment of the petitioners was made in 2009 and the appointment letter clearly shows that it is by way of promotion. This is so because the appointment order in the case of each of the petitioners shows that they are being put under probation for a period of two years and in case their work is not satisfactory or up to the mark they would be liable to be reverted to their parent cadre. Undoubtedly the Rules do not speak about promotion, yet the entire procedure which has been adopted shows that it was akin to “promotion”. Moreover, the yardstick to determine that the post is a higher post is not just the pay scale which is attached to that post. There are other factors which must be reckoned and must be considered in order to determine the nature of the post, such as the status of that post. The nature of work of Assistant Teacher (L.T. Grade) would be to teach to the students up to Class X. Earlier the petitioners were only teaching Class VI to VIII and in some cases, only up to Class V. Now as Assistant Teacher (L.T. Grade) he would be teaching up to Class X. Moreover, the status of an Assistant Teacher (L.T. Grade) is definitely higher than that of a Primary School Teacher. They have now a chance to be promoted as “Lecturers” which is a higher post. They have now a chance to be promoted as “Lecturers” which is a higher post. An opportunity which they were not having as Assistant Teacher in Junior High Schools or as a Head Masters in Primary Schools. From these yardsticks, it is clear that what happened in the case of the petitioners in the year 2009 was a promotion. 18. In view of the observations made herein above, the writ petition fails and is hereby dismissed. No order as to costs.