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2022 DIGILAW 226 (UTT)

Govind Prasad Gwasikoti v. State of Uttarakhand

2022-07-26

MANOJ KUMAR TIWARI

body2022
JUDGMENT : 1. Heard learned counsel for the parties. 2. Since common questions of law and fact are involved in these writ petitions, therefore are being taken up together and are being decided by this common judgment. However, for the sake of brevity, facts of Writ Petition (S/S) No. 1094 of 2022 alone are being considered. 3. By means of this writ petition, petitioners have sought the following reliefs:- “I. Issue a writ, order or direction in the nature of certiorari, calling for record and to quash the letter dated 12.11.2020 issued by the respondent no. 2 (Annexure No. 11). II. Issue a writ order or direction in the nature of mandamus, commanding and directing, the respondents to grant the benefit of promotional pay scale (Grade Pay of Rs. 5400/-) to the petitioners with effect from the date, when petitioner become eligible for the Promotional pay scale, details of date are given in Paragraph 9 of the writ petition, along with exemplary interest and its arrears. 4. Petitioners were appointed as Assistant Teacher in Junior Basic or Primary Schools run by Basic Education Board between the year 1987-1995 and they were employees of Basic Education Board, established under U.P. Basic Education Act, 1972. Subsequently, they were promoted to the next higher post of Head Master, Junior Basic School/Assistant Teacher, Senior Basic School, on different dates. Petitioners retained their status as teachers of Basic Education Board till enforcement of Uttarakhand School Education Act, 2006 and they became State employee, by virtue of provision contained in Section 58 of the aforesaid Act, which 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.” 5. Petitioners are aggrieved by denial of benefit of promotion pay scale to them. Petitioners are aggrieved by denial of benefit of promotion pay scale to them. According to them, their past services rendered in schools run by Basic Education Board should be taken into account while considering their eligibility for promotion pay scale, which is granted to teachers of Secondary Schools, in terms of Government Order dated 12.07.2002. The said Government Order provides that teachers of Secondary Schools shall be granted selection grade of pay, upon completion of ten years of satisfactory service in the ordinary grade and promotion pay scale shall be granted to teachers of Secondary Schools after completing 12 years after grant of selection grade. It further provides that promotion pay scale shall be granted to L.T. Grade Teachers, only when they have acquired Post Graduate Qualification. It further provides that benefit of selection grade of pay/promotion pay scale shall be payable only to such teacher who has not been promoted, and if someone declines to accept promotion when offered, he shall not be entitled to selection grade/ promotion pay scale. 6. Petitioners are challenging the decision taken by Regional Additional Director (Secondary Education), Nainital, which was communicated to Chief Education Officer, Almora, vide letter dated 12.11.2020 . In the said letter, while dealing with representation made by a similarly situate person, it was held by referring to paragraph no. 4 of Government Order dated 12.07.2002 that, since selection grade/promotion pay scale is given in lieu of promotion and seniority of Basic School Teachers in the cadre of L.T. Grade Teacher has to be reckoned only from the date of their adjustment/promotion in the cadre of L.T. Grade Teacher, therefore, teachers of Basic Schools are entitled to benefit of selection grade/promotion pay scale, only from the date of their substantive appointment in the cadre of L.T. Grade Teacher. In other words, it was held by Regional Additional Director (Secondary Education), Nainital that services rendered by teachers of Basic Education Board before their adjustment/promotion in the cadre of L.T. Grade Teacher, will not be taken into account for grant of selection grade of pay and promotion pay scale. 7. It is the contention of petitioners that the view expressed by Regional Additional Director (Secondary Education) in the impugned communication dated 12.11.2020, is unsustainable, as petitioners were inducted into cadre of L.T. Grade teacher by adjustment, in terms of Rule 5(2) of Uttarakhand Subordinate Education (Trained Graduate Grade) Service Rules, 2006. 7. It is the contention of petitioners that the view expressed by Regional Additional Director (Secondary Education) in the impugned communication dated 12.11.2020, is unsustainable, as petitioners were inducted into cadre of L.T. Grade teacher by adjustment, in terms of Rule 5(2) of Uttarakhand Subordinate Education (Trained Graduate Grade) Service Rules, 2006. The said provision provides that 25% posts of L.T. Grade teacher shall be filled by adjustment of Head Teacher, Primary School; Assistant Teacher, Junior High School and Assistant Teacher, Government Model Schools. It is further contention of petitioners that petitioners were so adjusted on the basis of Seniority Subject to rejection of Unfit and their adjustment cannot be confused with promotion, as petitioners were serving in the pay scale of Rs.5500-9000/- before their adjustment and there was no upgradation in their pay scale consequent to their adjustment in the cadre of L.T. Grade teacher. It is further contended that their grade pay also remained the same, even after their adjustment in terms of Rule 5(2) of the aforesaid Rules. 8. Reliance has been placed by learned counsel for petitioners upon a judgment rendered by Division Bench of this Court in Special Appeal No. 44 of 2010. In the said judgment, it was held that services rendered by the employees of Basic Education Board before their induction into Government Service in terms of Section 58 of Uttarakhand School Education Act, 2006, are liable to be added for determining their seniority in Government Service. Paragraph no. 8 of the said judgment rendered on 28.06.2010 is reproduced below:- “8. We have considered the rival submissions advanced by the learned counsel for the parties. In terms of the mandate Section 58 of the Uttaranchal School Education Act, 2006, the service rules of the State Government were liable to be referred to, so as to determine the issue of seniority of the respondent. However, in the absence of any explicit rules, which could be made applicable to the respondent under the Uttaranchal Government Servant Seniority Rules, 2002, the continuous length of service rendered by the respondent in the cadre of Senior Clerks is liable to be given effect to, so as to determine inter se seniority viz. the other employees of Education Department of the State Government. the other employees of Education Department of the State Government. Thus viewed, the respondent is liable to be given benefit of seniority with effect from 01.08.2000, which admittedly, is the date when the respondent was promoted as Senior Clerk in the Basic Education Board. This, in our view, shall also result in giving complete effect to the suo motu determination of the appellants, in absorbing the respondent as a Senior Clerk at the time of his induction into the service of Education Department of the State Government, as also, allowing him to draw salary at the stage he was drawing at the time of his appointment under the Education Department of the State Government. This is bound the basis and the manner of determination of the respondent’s seniority also. It would be pertinent to mention, that there was no option with the respondent to continue in the employment of the Basic Education Board, inasmuch as, without obtaining his consent the respondent (as also, all other employees earlier rendering service under the Basic Education Board) was transferred by one stroke of pen to the employment of the Education Department of the State Government. The respondent could not have unilaterally been denied the benefit of service rendered by him as Senior Clerk with effect from 01.08.2000.” 9. Learned counsel for petitioner has drawn attention of this Court to another Government Order dated 22.02.2010 in support of his contention that the State Government has taken policy decision to give benefit of past services for the purpose of selection grade of pay to such employees, who are adjusted/merged in a different cadre. 10. Thus, viewed in the light of aforesaid Division Bench judgment of this Court, the reason assigned for denial of promotion pay scale to petitioners, appears to be unsustainable, as benefit of past services rendered by petitioners before their induction into Government Service, cannot be denied to them for the purpose of seniority. 11. 10. Thus, viewed in the light of aforesaid Division Bench judgment of this Court, the reason assigned for denial of promotion pay scale to petitioners, appears to be unsustainable, as benefit of past services rendered by petitioners before their induction into Government Service, cannot be denied to them for the purpose of seniority. 11. However, the Government Order dated 12.07.2002 lays down certain other conditions for grant of promotion pay sale, and eligibility of petitioners for promotion pay scale in terms of those conditions has to be determined by the departmental authorities, therefore, in the humble opinion of this Court, ends of justice would be met, if the Competent Authority is directed to consider the claim of petitioners for promotion pay scale, in the light of applicable Government Policy, within a specific time frame. 12. Accordingly, both writ petitions are disposed of with a direction to Regional Additional Director (Secondary Education), Nainital to consider claim of the petitioners for promotion pay scale in the light of applicable government policy and pass a speaking order, as per law, within three months from the date of production of certified copy of this order.