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2015 DIGILAW 515 (UTT)

Sher Singh Rawat v. State of Uttarakhand

2015-10-30

SUDHANSHU DHULIA

body2015
JUDGMENT : Sudhanshu Dhulia, J. 1. Heard Mr. Amar Shukla, learned counsel for the petitioner, Mr. B.D. Kandpal, Deputy Advocate General for the State and perused the records. 2. In the above bunch of writ petitions, a common question has been raised before this Court, and hence all these petitions are being decided together. After calling for counter affidavits, which have been filed in most of the writ petitions, the petitioner has also filed rejoinder affidavit in WPSS No. 734 of 2015 and submits that his stand in connected matters is also the same, except for the difference in dates, which is not material. Since the issues are common in all the above writ petitions, therefore, all these petitions are being heard and decided by this common judgment. All the same the facts of WPSS No. 734 of 2015 will be referred while dealing with the factual aspect of these writ petitions. 3. All the petitioners before this Court are teachers, who are working in various Government schools in Uttarakhand. Presently, they all are working as an Assistant Teacher (L.T. Grade). Their grievance is that their absorption as an Assistant Teacher (L.T. Grade) should precede the date of their actual merger. In case it is done, as prayed by the petitioner, the petitioners would then get the benefit of seniority which would strengthen their claim for an earlier promotion to the next higher post of Lecturer, where 50% of the posts are to be filled from amongst Assistant Teacher (L.T. Grade) on the basis of seniority subject to their qualification. Admittedly, for promotion to the post of Lecturer the feeding cadre is the post of Assistant Teacher (L.T. Grade). 4. Another factor which is common to all the petitioners is that they were appointed as C.T. Grade teacher in the erstwhile State of U.P., prior to creation of the State of Uttarakhand (the appointed date for the creation of Uttarakhand is 09.11.2000). All the same, after creation of the new State they have been allocated to the State of Uttarakhand and, as stated above, are already working as an Assistant Teacher (L.T. Grade) in various Government schools. 5. In order to appreciate the grievance of the petitioner a brief background to the service conditions in Education in Secondary and Intermediate Government schools is necessary. 6. 5. In order to appreciate the grievance of the petitioner a brief background to the service conditions in Education in Secondary and Intermediate Government schools is necessary. 6. In the erstwhile State of Uttar Pradesh, after the primary education i.e. from Class VI onwards, teachers were graded differently. A teacher, who was taking Class VI, VII and VIII was appointed as an Assistant Teacher (C.T. Grade), whereas a teacher, who was taking Class IX and X was an Assistant Teacher (L.T. Grade) and teachers taking Class XI to XII were Lecturers. In short, apart from the primary school i.e. for Class I to V with which we are presently not concerned, there were three different categories of teachers (a) C.T. Grade, (b) L.T. Grade and (c) Lecturer, imparting education in Government schools from Class VI to Class XII. They were graded differently and were placed at different pay-scales. A Lecturer has a higher pay scale than an Assistant Teacher (L.T. Grade) and an Assistant Teacher (L.T. Grade) had a higher pay scale than Assistant Teacher (C.T. Grade). 7. Later the Government in its wisdom thought it best that instead of three grades there should be only two grades i.e. ‘Assistant Teacher (L.T. Grade)’ and ‘Lecturer’ and hence it decided to declare C.T. Grade as a dying cadre vide order dated 19.02.1991. Though there are other Government Orders to this effect, which reflect this intention of the Government and these orders are prior to the above date, but the actual order which was passed by the Special Secretary, Government of Uttar Pradesh by which C.T. Grade was declared as dying cadre and henceforth no appointment would be made of any Assistant Teacher (C.T. Grade) in 19.02.1991. It was further directed that the consequential action, such as merger of existing C.T. Grade teachers into L.T. Grade teachers, and matters regarding their salary, etc. shall be passed soon afterwards. By another Government Order dated 09.01.1992, which took almost 11 months, it was declared that consequent to the C.T. Grade being declared as dying cadre, all such C.T. Grade teachers, who have completed ten years of satisfactory service and subject to their being “trained graduates”, shall be merged as L.T. Grade teachers. Meaning thereby that if C.T. Grade teacher had already completed ten years of satisfactory service it will be merged as L.T. Grade, and the cut off date fixed was “01.01.1986”. Meaning thereby that if C.T. Grade teacher had already completed ten years of satisfactory service it will be merged as L.T. Grade, and the cut off date fixed was “01.01.1986”. Those who did not completed ten years of satisfactory service on 01.01.1986 would be merged as Assistant Teacher (L.T. Grade) as soon as they complete ten years of service. Consequent to the said order different orders were passed by the Government by the concerned District Education Officer, at the relevant time District Inspector of School, and in the present case (WPSS No. 734 of 2015), the order pertains to District Almora by which the petitioner services were merged. It was declared that the initial joining on the post of C.T. Grade teacher of the petitioner was dated 07.12.1981 and he has completed 10 years of service on 06.12.1991 and his date of merger as L.T. Grade is 07.12.1991. There are other different orders, which were for the other petitioners in the connected matters, was passed in the same manner, as referred above, although their date of merger are different. 8. The order dated 09.01.1992 and the consequential orders, which were different in each case, by which specific date was assigned for merger of the services is not in dispute. In the case of the petitioner (in WPSS No. 734 of 2015) and all other petitioners, the common factor is that they are being treated as Assistant Teacher (L.T. Grade) only from the date when they stood merged, as Assistant Teacher (L.T. Grade), such as 07.12.1991 (as in the case of the petitioner in WPSS No. 734 of 2015). They have never challenged this date of merger before any other forum and continued to be treated as an Assistant Teacher (L.T. Grade) from the date of merger i.e. 07.12.1991, or other dates, or might be for different petitioners. They have challenged it now. 9. Meanwhile, prior to the creation of the State of Uttarakhand, a writ petition was filed before the Lucknow Bench of High Court of Judicature at Allahabad being WPSS No. 5545 of 1992 (Rajkiya Shikshak Sangh & another vs. State of U.P. & another), which was decided by a learned Single Judge of Allahabad High Court (Lucknow Bench) along with other connected petitions, where inter-alia the challenge was to the subsequent Government Order dated 09.01.1992. The case of the petitioner was that since C.T. Grade has already been declared as dying cadre vide Government Order dated 19.02.1991, therefore, their services were liable to be merged as L.T. Grade from that date itself i.e. from 19.02.1991. This reasoning was adopted by the petitioner on the basis of an existing Service Rules. According to the service Rules known as “U.P. Subordinate Educational (Trained Graduates Grade) Service Rules, 1983” which governed C.T. Grade teachers, a C.T. Grade teacher becomes eligible for promotion for the post of Assistant Teacher (L.T. Grade) after completing “5 years of service.” Though the important factor to note here is that he only becomes eligible and is placed only in the zone of consideration and it would not mean that he would be automatically promoted to the post of Assistant Teacher (L.T. Grade) after completing five years of service. All the same, the notion or the logic of “five years” was derived from this existing rule by the petitioners in the above petition, before the Allahabad High Court. The Court came to the conclusion that since C.T. Grade is already declared as a dying cadre, vide order dated 19.02.1991, there was no occasion to fix ten years of satisfactory service, on C.T. Grade before absorption in L.T. Grade teacher and also to fix 01.01.1986 as the cut-of-date. The writ petitions were allowed and Government Order dated 09.01.1992 was quashed and it was declared that all teachers working as C.T. Grade would be merged in L.T. Grade after completing five years of satisfactory service on 19.02.1991. In other words, it was a general mandamus issued declaring that all Assistant Teacher (C.T. Grade), who had completed five years of satisfactory service on 19.02.1991 or thereafter would be automatically merged as Assistant Teacher (L.T. Grade). 10. Nothing has been brought on record to show to this Court, by any of the respondents, which may suggest that a special appeal was filed against the above order or the said order (referred above) was ever challenged before any other court. Therefore, the Court is going with an assumption that the order dated 15.05.2000 passed by the Allahabad High Court (Lucknow Bench) in WPSS No. 5545 of 1992 has attained a finality, as it has been argued by the learned Counsel for the petitioner. 11. Therefore, the Court is going with an assumption that the order dated 15.05.2000 passed by the Allahabad High Court (Lucknow Bench) in WPSS No. 5545 of 1992 has attained a finality, as it has been argued by the learned Counsel for the petitioner. 11. The petitioner would, therefore, argue that there was a general mandamus issued by the Allahabad High Court (Lucknow Bench), which was applicable to all the C.T. Grade teachers, by which their services were liable to be merged as Assistant Teacher (L.T. Grade) not after ten years completion of satisfactory service but after five years completion of service on or before 19.02.1991. However, the petitioners are being treated as Assistant Teacher (L.T. Grade) in view of the Government Order dated 27.01.1993 (as in the case of petitioner in WPSS No. 734 of 2015) by which he has been treated to be merged in C.T. Grade from 07.12.1991 i.e. the date after completing ten years of satisfactory service, which is as per the Government Order dated 09.01.1992, which has been quashed by the Allahabad High Court. 12. The petitioner (WPSS No. 734 of 2015) initially joined his services as Assistant Teacher (C.T. Grade) on 07.12.1981, and therefore, as per the Government Order dated 09.01.1992 he completed ten years of service on 06.12.1991 and his services were merged on 07.12.1991 as L.T. Grade teacher. However, he would argue now in view of the decision of the Lucknow Bench of Allahabad High Court that the correct calculation could have been five years, as per the Government Order dated 19.02.1991, which would mean that since he had already completed five years of service as Assistant Teacher (C.T. Grade) on 19.02.1991, he was liable to be merged in C.T. Grade on 19.02.1991 itself i.e. the date of the Government Order when the C.T. Grade was declared as a dying cadre. In case his date of merger as Assistant Teacher (L.T. Grade) is taken as 19.02.1991, as the petitioner would argue, he would gain a few months in seniority and that would in turn brighten his chances for promotion to the post of Lecturer. For records the date of the merger in Assistant Teacher (L.T. Grade) of petitioner (in WPSS No. 734 of 2015) is 06.12.1991. If it is made 19.02.1991, he would get a benefit of about 10 months of service. For records the date of the merger in Assistant Teacher (L.T. Grade) of petitioner (in WPSS No. 734 of 2015) is 06.12.1991. If it is made 19.02.1991, he would get a benefit of about 10 months of service. Same is the case with other petitioners as well, though their dates of merger are different. 13. The State in its counter affidavit though has not disputed the logic contained in the writ petition nor does it dispute the order of the learned Single Judge of Allahabad High Court (Lucknow Bench) by which Government Order dated 09.01.1992 was quashed and the actual date of merger would be determined vide order dated 19.02.1991, yet it argues that the petition is highly belated and any cause of action which accrued to the petitioners was way back in the year 2000 itself, as the judgment was rendered on 15.05.2000 and they have made no efforts before the Education Authority to correct this date of merger. Secondly, it has been argued that in case any relief is granted to the petitioner, at this stage by this Court, it would amount to unsettling matters which has long been settled, during all these years. It has also been pointed out that it would create of lot of confusion and heartburning and will give rise to further litigation, particularly at the hands of such L.T. Grade Teacher who were directly appointed as L.T. Grade teacher and have all these years been shown as senior to the petitioners. Many of them have been promoted to the post of Lecturer and may be by now on the post of Head Master or Principal. Thirdly, since this issue is brought by the petitioner which has already been decided by the Allahabad High Court (Lucknow Bench) in WPSS No. 5545 of 1992 to re-agitate the same issue before this Court is not proper and the only remedy if at all available to the petitioner is by way of a contempt petition and not to re-agitate the issue before this Court. 14. 14. After hearing the learned counsel for the petitioner as well as learned counsel for the State, it is clear that though the petitioners have not been vigilant in approaching the Court for their relief, as nothing has been shown before this Court that the petitioners had made any effort before the Education Authorities for correction of their date of merger subsequent to the order of Allahabad High Court (Lucknow Bench), therefore, there is a delay on this aspect at the hands of the petitioners, which cannot be denied. The Court is also conscious of the fact that a relief, sought by the petitioners may ultimately unsettled the settled seniority list, particularly between the teachers such as the petitioners who stood merged from C.T. Grade to L.T. Grade and those Assistant Teachers who were directly appointed as L.T. Grade in Government service, particularly those who were appointed between 19.02.1991 to 19.02.1996 i.e. between period of five years. Some of them have always been treated as seniors to the present petitioners may now become their juniors. Moreover, such directly appointed L.T. Grade teachers, reference of which given above, are also not before this Court and no efforts has been made by the petitioner to implead such teachers or their association in these writ petitions. 15. Having made the said observations, however, the fact remains that the order of the learned Single Judge of Allahabad High Court (Lucknow Bench) was a general mandamus declaring all C.T. Grade teachers as L.T. Grade teachers who have completed five years of service on or after 19.02.1991, to be merged as C.T. Grade Teachers. The operative portion of the said judgment reads as under:- “Accordingly both the petitions succeeds and these circulars quashed and a writ of mandamus is issued to the U.P. Govt. to declare all the petitioners of writ petition no. 1259 (S/S) of 1997 and the petitioner no. 2 of writ petition no. 5545 (S/S) of 1992 and all C.T. Grade teachers who have on or after 19.02.1991 completed five years service as L.T. Grade teachers. Certainly they shall be entitled to all consequential benefits.” 16. Since the said order has already attained a finality, it was incumbent upon the State Authority too to correct the inter se seniority list as well. 5545 (S/S) of 1992 and all C.T. Grade teachers who have on or after 19.02.1991 completed five years service as L.T. Grade teachers. Certainly they shall be entitled to all consequential benefits.” 16. Since the said order has already attained a finality, it was incumbent upon the State Authority too to correct the inter se seniority list as well. Therefore, the State Government too cannot wash its hands off in the present matter, as it was the duty of the State Government to correct the date of merger, in term of the court’s order. This was not done. 17. In view of the above, the writ petitions stand disposed with a direction to the State Government that since the Government Order dated 09.01.1992, which prescribed ten years of service as C.T. Grade teacher has already been quashed by the High Court of Judicature of Allahabad (Lucknow Bench) and the requirement is now only of five years of satisfactory service in C.T. Grade teacher to merge them to L.T. Grade Teacher on 19.02.1991. All the petitioners shall be treated to be Assistant Teachers (L.T. Grade) w.e.f. 19.02.1991 or as and when they completed five years of satisfactory service in the C.T. Grade. 18. All the same, it is clarified that this determination shall not affect in any manner the settled seniority of the Assistant Teachers (L.T. Grade) whose services stood merged from C.T. Grade to L.T. Grade (such as the petitioners) vis-a-vis the directly appointed Assistant Teachers (L.T. Grade) who are so far always shown to be senior to the petitioners. They shall continue to remain senior to the petitioners, as they have been shown senior to them all along, and this order would not affect their seniority against the petitioners or similarly situated persons. 19. It is further made clear that this benefit, which has been granted to the petitioners, will only be a notional benefit, particularly in view of the fact that the petitioners approached this Court belatedly. In other words, they shall not be given any financial benefit, except what may come to them at the time of calculation of their post retirement benefits and pension, and for continuity of their service.