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2025 DIGILAW 1416 (GAU)

Zachelo Wetsah v. State of Nagaland

2025-08-22

MRIDUL KUMAR KALITA

body2025
JUDGMENT : MRIDUL KUMAR KALITA, J. 1. Heard Mr. C. T. Jamir, learned senior counsel assisted by Mr. I. Imchen, learned counsel for the petitioners. Also heard Ms. Livika, learned Government Advocate for the respondents. 2. This writ petition under Article 226 of the Constitution of India has been filed by the petitioners, namely, Zachelo Wetsah and 51 Others, who are serving as Post Graduate Teachers (herein after referred to as “PGTs”) under the Department of School Education Nagaland, Kohima. The above named petitioners were upgraded to the posts of PGT from two different categories of posts, namely, the petitioners Nos. 1 to 12 were upgraded to the post of PGT from the post of Graduate Teachers, whereas, the petitioners Nos. 13 to 52 were upgraded to the post of PGT from the post of Primary Teachers. The petitioners are aggrieved that they are not given grade pay of Rs.4,600/- (Pay Matrix Level-12) on the basis of the principle of equal pay for equal work. 3. The learned senior counsel for the petitioners has submitted that till date only two batches of teachers were upgraded to the post of PGTs on the strength of Cabinet decision taken on that behalf. The first batch was upgraded in the year 2014, whereas, the second batch was upgraded in the year 2020. 4. The learned senior counsel for the petitioners has submitted that the upgradation of 262 posts of PGTs in the year 2014 received ex- post facto clearance of the P&AR Department of the Government by their U.O. No. 106 dated 19.05.2015. He further submits that the Finance Department also accorded its approval by RFC/Estt/No. 30/49 dated 01.06.2016 as well as RFC/Estt. No. 31/84 dated 20.12.2017. In both the concurrence given by the Finance Department, the grade pay of the upgraded posts of Graduate Teachers were mentioned as Rs.4,600/-. 5. The learned senior counsel for the petitioners submits that the case of the petitioners is squarely covered by concurrence dated 01.06.2016 and 20.12.2017. The learned senior counsel for the petitioners has submitted that in the year 2020 while the petitioners were functioning as Primary Teachers and Graduate Teachers, on the strength of three notifications dated 5th of March, 2020, they were upgraded to the posts of Graduate Teachers. The said notifications are (i) Notification No. DSE/Cab/HSE-Upgr/2012-13 (Vol-I)-I, (ii)Notification No. DSE/Cab/HSE-Upgr/2012-13 (Vol-I)-II and (iii) EDS/GHSS/4-3/2007 (Pt-1)-III. 6. The said notifications are (i) Notification No. DSE/Cab/HSE-Upgr/2012-13 (Vol-I)-I, (ii)Notification No. DSE/Cab/HSE-Upgr/2012-13 (Vol-I)-II and (iii) EDS/GHSS/4-3/2007 (Pt-1)-III. 6. The learned senior counsel for the petitioners has submitted that the aforementioned notification issued on 5th of March, 2020, their pay was fixed at Pay Matrix Level-11 (Rs.40,800-1,29,200) under the School Education Department. He submits that the said Pay Matrix Level in the Nagaland Services (Revision of Pay) Rules, 2017 (herein after referred to as ROP Rules, 2017) carries a grade pay of Rs.4,400/-. 7. The learned senior counsel for the petitioners has submitted that the Post Graduate Teachers who were upgraded in the year 2014 were granted grade pay of Rs.4,600/- which falls under Level-12 of Pay Matrix. Whereas, the present petitioners are getting a lower grade pay of Rs.4,400/-, which falls under Level-11 of the Pay Matrix though all of them were appointed on the basis of same Cabinet decision which was published by way of Office Memorandum dated 19th of June, 2014 (annexed as Annexure-A to the writ petition). 8. The learned senior counsel for the petitioners has submitted that the names of the petitioners were also shown in the incumbency list of Post Graduate Teachers of Government Higher Secondary Schools (2020-2021) prepared by the Government, where the grade pay of the petitioners was shown Rs.4,600/-. The learned senior counsel for the petitioners has submitted that the petitioners who stand on the same footing like that of those PGTs who were upgraded in the year 2014 were treated in a discriminatory manner violating their fundamental rights under Article 14 of the Constitution of India by giving them lesser grade pay than that of their counterparts who were appointed in the year 2014. Being aggrieved, the petitioners made a representation to the Principal Secretary to the Government of Nagaland, School Education Department on 16.02.2021. Against the aforesaid representation, the Government of Nagaland made a response by their letter dated 09.03.2025 whereby their representation was rejected citing the reasons that same are not tenable in view of the contrary provisions contained in the service Rules. 9. Against the aforesaid representation, the Government of Nagaland made a response by their letter dated 09.03.2025 whereby their representation was rejected citing the reasons that same are not tenable in view of the contrary provisions contained in the service Rules. 9. The learned senior counsel for the petitioners submits that the stand taken by the respondent authorities in view of the provisions contained in the Nagaland School Education Service Rules, the higher pay level of Rs.4,600/-may not be granted to the petitioners is not tenable in law in as much as the concurrence of Finance Department clearly indicates that the Post Graduate Teachers are entitled to get grade pay of Rs.4,600/- at the Pay Matrix Level-12. 10. The learned senior counsel for the petitioners has submitted that the upgradation of the present petitioners was on the basis of concurrence of the Finance Department given on 20.12.2017, where the concurrence was given for the grade pay of Rs.4,600/-to Post Graduate Teachers. He submits that though the batch of Post Graduate Teachers who were upgraded in the year 2014 were getting a grade pay of Rs.4,600/- per month, but even after coming into effect of Nagaland School Education Service Rules, 2017, they are still drawing the grade pay of Rs.4,400/-, however, the petitioners who are also Post Graduate Teachers are unjustly denied the said benefit. 11. The learned senior counsel for the petitioners has submitted that the differential treatment given to the petitioners vis-a-vis the Post Graduate Teachers of 2014 batch has infringed the fundamental rights of the petitioners guaranteed to them by Article 14 of the Constitution of India. He submits that to treat the petitioners differently from the PGTs of 2014 batch is unreasonable and not based on an intelligible differentia. He submits that the duties performed by the petitioners as well as the PGTs of 2014 batch is not different, hence, differential treatment to them is against the principles of equality. In support of his submission, the learned senior counsel for the petitioners has cited a ruling of the Apex Court in the case of “ State of Punjab and Others Vs.Senior Vocational Staff Masters Association and Others ”reported in “ (2017) 9 SCC 379 ” 12. In support of his submission, the learned senior counsel for the petitioners has cited a ruling of the Apex Court in the case of “ State of Punjab and Others Vs.Senior Vocational Staff Masters Association and Others ”reported in “ (2017) 9 SCC 379 ” 12. The learned senior counsel for the petitioners has also submitted that the notification dated 5th of March, 2020 by which the petitioners were upgraded clearly stipulates that the services rendered by the upgraded teachers in the past shall be counted for all other service benefits except seniority.He submits that the pay is the most important service benefit which a person employed in Government service may avail and unless his pay is protected, the stipulations mentioned in the aforesaid notification dated 5th of March, 2020 may not be regarded as complied with. He, therefore, submits that to ensure pay protection to the petitioners, they have to be given salary at pay level of Rs.4,600/-at par with their counterparts who were appointed in the year 2014. He also submits that the Government cannot retract from the concurrence of the Finance Department as mentioned in the notification regarding upgradation of the petitioners as Post Graduate Teachers by coming up with a justification much after the aforesaid concurrence was given. 13. The learned senior counsel for the petitioners has also submitted that public order publically made in exercise of statutory authority cannot be construed in the light of explanation subsequently given by the Officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by the public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. In support of his submission, the learned senior counsel for the petitioners has cited a ruling of the Apex Court in the case of “ Mohindhr Singh Gill and Another Vs. Chief Election Commissioner, New Delhi and Others ” reported in “ (1978) 1 SCC 405 ”. In support of his submission, the learned senior counsel for the petitioners has cited a ruling of the Apex Court in the case of “ Mohindhr Singh Gill and Another Vs. Chief Election Commissioner, New Delhi and Others ” reported in “ (1978) 1 SCC 405 ”. He submits that by denying the petitioners equal pay for equal work viz-a-viz the Post Graduate Teachers of 2014 batch, they have been treated in an arbitrary manner and their fundamental rights guaranteed to them under Article 14 of the Constitution of India has been violated. 14. On the other hand, Ms. Livika, learned Government Advocate appearing for the respondents has submitted that in view of the delinking of Class-11 from the State Government Colleges from academic year 2013-14, the Education Department propose upgradation of 22 Government High Schools to that of Government Higher Secondary rd Schools and accordingly on 3 of June 2013, the Cabinet decided that the Education Department should initiate immediate action for upgradation and proposal for creation of upgraded posts. It was also decided that the Education Department should route the proposal for upgradation of the posts through P&AR Department as well as through Finance Department. She further submits that in order to rationalize the selection of candidates for the proposed upgraded posts, it was decided that selection should be made from amongst senior most regular qualified teachers whose pay scale have already crossed the PGT scale or is at par with the scale of pay of PGT. 15. The learned Government Advocate has submitted that the first phase of upgradation of 262 posts of Graduate Teachers/Primary Teachers to the level of Post Graduate Teachers was made in the year 2014 and it was in pursuant to the Nagaland School Education Service Rules, 2002, which was in operation at that point of time. She submits that as per the Rules which were prevalent in the year 2014, the post Graduate Teachers were given scale of pay of Rs.6,500/- to Rs.10,500/- which is equivalent to grade pay of Rs.4,600/-. She submits that none of the present petitioners were eligible to be upgraded to the posts of PGT in the year 2014 and they became eligible for the same only in the year 2020. She submits that none of the present petitioners were eligible to be upgraded to the posts of PGT in the year 2014 and they became eligible for the same only in the year 2020. She submits that in the meanwhile the Nagaland School Education Service Rules came into force on 29th of November, 2017 and the said Rules was applicable in case of petitioners who were upgraded to the post of PGT only in the year 2020. She submits that in the Nagaland School Education Service Rules, 2017, the posts of PGTs were categorized in two categories, namely, Post Graduate Teachers (Junior Gr.-III) with a grade pay of Rs.4,400/- and Senior Post Graduate Teachers (Junior Gr.-II) with grade pay of Rs.4,600/-. 16. She further submits that the pay matrix provided in the Nagaland School Education Service Rules, 2017 for the post of PGT as Rs.4,400/- and for the post of Senior PGT as Rs.4,600/- was in conformity with the provisions of Nagaland Service (Revision of Pay) Rules, 2017 (herein after referred to as ROP 2017). She, therefore, submits that as the PGTs of 2014 batch got upgradation when Nagaland School Education Service Rules, 2002 were prevalent. Whereas, the present batch of the petitioners were upgraded when 2017 Rules were in place and, therefore, she submits that there is no arbitrariness or violation of the principle of equality as PGTs of 2014 batch and the petitioners who were appointed in 2020 were governed by different service rules. 17. The learned Government Advocate has, therefore, submitted that as the provisions of Nagaland School Education Service Rules, 2017 have not been challenged by the petitioners, therefore, she submits that no illegality or violation of any fundamental rights of the petitioners have occurred in this case. 18. The learned Government Advocate has further submitted that the Pay Matrix indicated in the notification dated 5th of March, 2020 by which the petitioners were upgraded as PGTs, is in conformity with the provisions of ROP 2017 as well as Nagaland School Education Service Rules, 2007. She submits that the incumbency list indicated by the petitioners in the Annexure-J of the writ petition contains clerical error and the respondents are well within their rights to rectify the said clerical error. She submits that the incumbency list cannot override the statutory provisions contained in the Rules of 2017. 19. She submits that the incumbency list indicated by the petitioners in the Annexure-J of the writ petition contains clerical error and the respondents are well within their rights to rectify the said clerical error. She submits that the incumbency list cannot override the statutory provisions contained in the Rules of 2017. 19. The learned Government Advocate has submitted that the concurrence of Finance department about which mention is there in the notification dated 5 of March, 2020 is only an inter-departmental communication between different departments of the Government. The views suggested in such inter-departmental communications are not binding. She submits that what is binding is what has been mentioned in notification dated 5th of March, 2020 wherein it categorically lays down the level-11 of pay matrix for the Post Graduate Teachers, which is equal to pay level of Rs.4,400/- and which is also in conformity with the Nagaland School Education Service Rules, 2017, which were prevalent at that time. She submits that such inter-departmental communication whereby concurrence of a particular Department is conveyed for taking or making a decision by another Department has no statutory force and, therefore, it cannot override the law. 20. The learned Government Advocate has submitted that the Rules 2017 clearly prescribes that the Post Graduate Teacher (Junior Grade-III) are entitled to get grade pay of Rs.4,400/- only, as such, in the instant case also, the statutory prescriptions as regards pay of the Post Graduate Teacher upgraded in the year 2020 would prevail against any other executive instruction. In support of her submission, the learned Government Advocate has cited a ruling of the Apex Court in the case of “ Rajasthan State Industrial Development and Investment Corporation Vs. Subhash Sindhi Cooperative Housing Society, Jaipur and Others ” reported in “ (2013) 5 SCC 427 ” 21. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides. 22. Subhash Sindhi Cooperative Housing Society, Jaipur and Others ” reported in “ (2013) 5 SCC 427 ” 21. I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides. 22. It appears that in this case the petitioners who were upgraded as Post Graduate Teachers in the year 2020 by the notifications dated 5th of March, 2020 are aggrieved with getting pay in the level-11 of the Pay Matrix (Rs.40,800/- to Rs.1,29,200/-) under School Education Department which is equivalent to earlier pay level of Rs.4,400/-, however, their counterparts who were upgraded in the year 2014 are getting higher pay level of Rs.4,600/-. 23. It appears that the petitioners are also harping on the fact that in the notification dated 5th of March, 2020, by which they were upgraded as PGTs, it is indicated that the decision of upgradation has the ex-post facto clearance from P&AR Department by their U.O. No. 106 dated 19.05.2015 as well as concurrence of Finance Department by RFC/Estt/No. 30/49 dated 01.06.2016 in case of those petitioners who were upgraded to PGTs from the post of Graduate Teachers as well as the notification dated 5th of March, 2020 whereby 16 posts of Graduate Teachers and 43 posts of Primary Teachers were upgraded to the post of Post Graduate Teachers. 24. If we carefully peruse both the notifications dated 5th of March, 2020 it would be clear that both the notifications categorically prescribes Pay Level-11 (Rs.40,800-Rs.1,29,200/-) of Pay Matrix, it also appears that though in the said notifications it has been mentioned that concurrence of Finance Department was taken, however, it is not apparent from the said notification that the Finance Department gave concurrence for different pay level from what has been stated in the said notification. 25. It also appears that the notifications dated 5th of March, 2020 were sent for their publication in the Nagaland gazette which is official gazette of the Government of Nagaland and once a notification is published in the official gazette,it may be deemed that same is in public domain. Whereas, as regards the concurrence of the Finance Department is concerned, it does not create any right in favour of the petitioners. Whereas, as regards the concurrence of the Finance Department is concerned, it does not create any right in favour of the petitioners. The said concurrence is only an inter-departmental communication between various departments of the Government which facilitate in taking a decision by a specific Department of the Government of Nagaland. What is binding is the notification and not the views/clearance/concurrence on the basis of which such decision was taken. 26. Further,on perusal of the provisions of Schedule-II of the Nagaland School Education Service Rules, 2017 is concerned, it clearly stipulates that PGT (Junior Gr.-III) would get grade pay of Rs.4,400/- and only Senior PGT would get a grade pay of Rs.4,600/-. The present petitioners have not challenged the said provisions of the Nagaland School Education Service Rules, 2017. The petitioners cannot take a plea that the ultimate decision as regards the grade pay payable to them has to be taken according to for what the Finance Department has accorded its concurrence. The concurrence of Finance Department is only recommendatory. What is ultimately binding is the notifications dated 5th of March, 2020 which categorically lays down in an ambiguous term that those Graduate Teachers and Primary Teachers whose posts were upgraded as Post Graduate Teacher will get pay at Level-11 (Rs.40,800- Rs.1,29,200/-) of Pay Matrix which is in conformity with the provisions of Nagaland School Education Service Rules, 2017. 27. As regards the plea of differential treatment to the petitioners vis-a-vis their counterparts who were upgraded in the year 2014 is concerned, it appears that in the year 2014 the Nagaland School Education Service Rules, 2002 were in force and it provided scale of pay of Rs.6,500/- to Rs.10,500/- to the Post Graduate Teachers. It also appears that as per the ROP Rules of 2010, after revision of pay, the equivalent grade pay of the pay scale of Rs.6,500/- to Rs.10,500/- after revision is Rs.4,600/-. 28. It also appears that the Nagaland School Education Service Rules, 2017 has made two categories of Post Graduate Teachers, namely, Senior PGT (Junior Gr.-II) which carries a grade pay of Rs.4,600/- as well as PGT (Junior Gr.-III) which carries grade pay of Rs.4,400/-. 29. As apparent from the materials available on the record, all the present petitioners were upgraded as Post Graduate Teachers only in the year 2020 and none of them has been upgraded as Senior PGT. 29. As apparent from the materials available on the record, all the present petitioners were upgraded as Post Graduate Teachers only in the year 2020 and none of them has been upgraded as Senior PGT. As the 2002 Rules which provided for a higher pay grade for Post Graduate Teacher was no longer in force when the upgradation of the present petitioners was done in the year 2020, they cannot claim benefit under the said Rule which has already been repealed by Rule 35 of the Nagaland School Education Service Rules, 2017. Therefore, this Court is of the considered opinion that the petitioners who were upgraded as PGTs in the year 2020 in pursuant to the Nagaland School Education Service Rules, 2017 cannot claim parity with the PGTs of 2014 batch who were upgraded six years prior to the upgradation of the present petitioners as PGTs under Nagaland School Education Service Rules, 2002which was in force at that point of time. 30. It is also to be noted that when the notification dated 5 of March, 2020 was issued, the relevant Rules i.e., Nagaland School Education Service Rules, 2017 provided for two categories of Post Graduate Teachers, namely, Senior Post Graduate Teacher (Junior Gr.-II) as well as Post Graduate Teachers (Junior Gr.-III). There is no ambiguity in the notification dated 5th of March, 2020 that the present petitioners were upgraded as Post Graduate Teachers only, which carried grade pay of Rs.4,400/- and not as Senior Post Graduate Teacher which carried grade pay of Rs.4,600/-. Hence, the petitioners cannot claim grade pay which is prescribed for a different post to which the petitioners were not upgraded. 31. This Court is of considered opinion that the petitioners and the Post Graduate Teachers who were appointed in the year 2014 stand on two different footings and were governed by two different set of Rules applicable to them at the time of their upgradation and, therefore, by providing the grade pay of Rs.4,400/- to the petitioners in terms of Rules applicable to them they were not subjected to any arbitrary treatment and same has not in any manner violated the fundamental rights guaranteed to the petitioners under Article 14 of the Constitution of India. 32. For the reasons discussed in the forgoing paragraphs, this writ petition is accordingly dismissed.