HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No.29 Civil Misc. Writ Petition No.70020 of 2011 Subash Chandra Vs. State of U.P. & Ors. Hon. Sunil Ambwani, J.
Hon. Manoj Misra, J.
1. We have heard Smt. Arti Raje, learned counsel for the petitioner. Learned Standing Counsel appears for the respondents.
2. The petitioner was appointed as Lecturer in Mathematics in D.V.P.G. College, Orai, Jalaun on honorarium basis on 13.10.2009 awaiting regular selection of teachers in the college by the U.P. Higher Education Service Commission.
3. By this writ petition the petitioner prayed for following reliefs:-
"(a) Issue, a writ, order or direction in the nature of certiorari quashing the Government Order dated 23.1.2009 (Annexure No.4 to the writ petition) in so far as it does not allow dearness and other allowances on the revised honorarium amount to the Mandeya lecturers appointed after 31.12.2006 under the provisions of Government Order dated 7.4.1998 (Annexure no.1 to the writ petition) and is discriminatory in comparison to the Mandeya lecturers appointed before 31.12.2006.
(b) Issue, a writ, order or direction in the nature of mandamus commanding the respondent no.1 and 2 to ensure payment of honorarium to the petitioner at the rate of minimum of the scale of pay 8000-13500 together with dearness and other allowances thereon as per rules."
4. Earlier the petitioner had filed writ petition by which his representation for continuity in service was directed to be decided. On 13.10.2009 the petitioner's representation along with 17 other similarly situate teachers appointed on honorarium basis was decided by Dr. Miyan Jan, the Director of Education (Higher Education) U.P. at Allahabad. He allowed the petitioners to continue until the regularly selected candidates are appointed by the U.P. Higher Education Service Commission and until then they were made entitled to the honorarium on the basis of the Government Order dated 7.4.1998.
5. The U.P. Higher Education Service Commission could not function for a long time and even after it was constituted the selections of the teachers in the degree colleges could not be made on account of variety of reasons. In order to cater to the needs of the colleges, and to provide for teachers in the vacancies continuing for a long time, the State Government by Government by Government Order dated 7th April, 1998 provided for appointment of eligible teachers on honorarium basis. A large number of teachers were appointed and were continued, until selections and appointments by the Commission, giving rise to expectations for regular salary and regularisation.
6. In Nagendra Pathak & Ors. v. The State of U.P. connected with writ petition filed by Km. Renu Tiwari & Ors. being Writ Petition No.4812 of 1988, this Court passed an order on October 10th, 1995, quashing the Government Order dated 22.7.1986, by which honorarium of the teachers was increased to Rs.15/- per lecture with rider of minimum of 12 lecturers and maximum of 18 lectures per week. This Court after finding that the amount paid to the qualified and eligible Lecturer was too small, directed that the petitioners be given pay scale of Rs.2000-4000/-. A special leave petition against the judgment was dismissed by the Supreme Court on 5.5.1997.
7. In Anurag Tripathi & Ors. v. State of U.P. & Ors., Writ Petition No.5210 of 2007 connected with large number of writ petitions filed by similarly situate teachers working on part time basis on the substantive vacant posts of Lecturers in affiliated degree colleges, who were entitled to be considered for regularisation under Section 31E, this Court passed orders as follows:-
"All the writ petitions are accordingly disposed of with the following directions:
(a) Part-time teachers appointed under the Government Order dated 17.04.1998 would continue to function as such till regularly selected candidates recommended by the Commission joins, or in terms of the final judgment of the Hon'ble Supreme Court in Special Leave Petition (Civil) No. 84 of 2004 whichever is earlier.
(b) Such Part-time teachers shall be entitled to payment at the rate provided for under the Government Order on per lecture basis subject to the maximum prescribed, they are not entitled to salary at par with regular Lecturers.
(c) Absorption under Section 31-E of the Commission's Act shall not be effected in favour of any part-time teacher till the Hon'ble Supreme Court considers and decide the Special Leave Petition (Civil) No. 84 of 2004.
(d) Absorption, if any, of part-time teachers under Section 31-E of the Act subsequent to the judgment of the Hon'ble Supreme Court (if it is decided in favour of part-time teachers) would be considered against such substantive vacancies which had not been advertised by the Commission till the enforcement of Act No. 46 of 2006.
(e) The Director of Higher Education shall ensure that all existing vacancies are requisitioned by the Management/Principal of the recognized affiliated and aided Degree Colleges within the time specified above and the Commission in turn shall ensure that regular selection are made against the said vacancies within one year from the date the requisition is received after following the procedure prescribed. The Director shall direct placement of the selected candidates immediately thereafter. There should be no complaint to this Court that selections could not be made by the Commission because of absence of Chairman/other member/other facilities being not made available by the State."
8. The appointment on honorarium basis continued unabated. There are large number of teachers appointed prior to 31.12.2006 waiting for regularisation under Section 31 of the Act. They filed Writ Petition (SB) No.1175 of 2009, Dr. Gaurav Misra v. State of U.P. All the petitions were clubbed together and decided by common judgment dated 22.12.2010. The operative portion of the order in Dr. Gaurav Mishra are as follows:-
"28.Since in the case of Km. Renu Tiwari, the Division Bench has decided the claim of part time lecturers with regard to payment of regular salary, it is not open now, to reconsider the same aspect of the matter in these bunch of writ petitions. All part time lecturers shall be entitled for payment of salary in terms of judgment given in the case of Km. Renu Tiwari (supra).
29.In view of the above, we allow the writ petition in part maintaining the order in question subject to observations made herein above. The petitioners shall be entitled to be considered for regularisation in pursuance of directions issued in Anurag Tripathi (supra). So far as the payment of salary is concerned, all the similarly situate candidates shall be entitled for salary in terms of Km. Renu Tiwari's case (supra).
No order as to costs."
9. By the Government Order dated 6th January, 2009 after considering the judgment of this Court in Dr. Krishna Kumar Singh & 30 others decided on 3.9.2008 (Writ Petition No.1566 (SB) of 2007 the State Government considering the fact that the teachers appointed prior to 31.12.2006 have completed long period of service as honorarium Lecturers and were working continuously, converted their honorarium to pay scale of Rs.8000-13,500/- and allowances. The pay scale was admissible subject to conditions that the teachers held qualification prescribed by the University Grants Commission; they were appointed prior to 31.12.2006 in accordance with the Government Order dated 7.4.1998; they have been given honorarium from the government grant; they have been continuously working from the date of their appointment in any college; their services will come to an end as soon as regularly selected persons are made available by making placements by the Director of Higher Education after his/ her selections by the U.P. Higher Education Service Commission; the pay scales will be treated as honorarium and further that they have worked for the entire month. They will not be made entitled to payment for days of holidays.
10. It appears that large number of teachers, who were not eligible to receive the pay scale of Rs.8000-13,500/- as honorarium approached the State Government with their grievances of raising the pay from Rs.8000/- to the pay scale admissible to the teachers appointed prior to 13.12.2008. The State Government after considering their demands issued a Government Order dated 23rd January, 2009 increasing their honorarium from Rs.8000/- to Rs.12,000/- subject to conditions that payment of Rs.12,000/- shall be considered as honorarium, and that on the days that they are absent or have not worked, an amount of Rs.600/- per day shall be deducted from their honorarium.
11. Smt. Arti Raje, learned counsel for the petitioner submits that the petitioner has been grossly discriminated in violation of Art.14 and 16 of the Constitution of India in providing honorarium by Government Order dated 23rd January, 2009 on fixed amount of Rs.12,000/- subject to deduction on the days that he has not worked. She submits that discrimination is hostile and invidious to those honorarium teachers, who are performing the same work and discharging same duties and responsibilities. The petitioner is not claiming regularisation under Section 31E, as he has not yet eligible for regularisation but that the State Government cannot discriminate them in view of D.S. Nakara's case amongst similarly situate persons. According to her, the petitioner performing same duties as are being discharged by those who were appointed prior to 31.12.2006. She submits that in these hard days of inflation, when the inflation has affected everyone, the fixation of honorarium at Rs.12,000/- for qualified and eligible teachers, is a very small amount. The petitioner is similarly situate in life as those, who were appointed prior to 31st December, 2006.
12. Learned Standing Counsel submits that the petitioner falls in different class than those teachers, who were appointed on honorarium basis prior to 31.12.2006. All the honorarium teachers appointed prior to 31.12.2006 were working for more than three years. The State Government on 6th January, 2009, found that the teachers, who were working for more than 3 years should have made entitled to honorarium equal to the pay scale of Rs.8000-13,500/-, which along with dearness allowance comes to about Rs.21,000/-. Although the petitioner is eligible and is also taking classes, he cannot be treated to fall in the same class as those, who were appointed prior to 31.12.2006. The petitioner cannot equate himself with the teachers, who have completed more than three years of service and those who have become entitled to regularisation under Section 31E of the U.P. Higher Education Service Commission Act.
13. We have considered the submissions and do not find that the petitioner can be given benefit of the judgment in Dr. Gaurav Mishra's case. All the teachers in Dr. Gaurav Mishra's case had completed three years of service and were claiming entitlement of absorption under Section 31E of the Act as they were appointed on honorarium basis prior to U.P. Higher Education Service Commission (Third Amendment) Act, 2006. In that context the Court directed following the judgment in Km. Renu Tiwari applicable to part time Lecturers that they should be considered, for payment of salary in terms of judgment in Km. Renu Tiwari.
14. The judgment in Km. Renu Tiwari was rendered at a time, when the principles of regularisation in service were applied liberally by the Court. The Constitution Bench of the Supreme Court in State of Karnataka v. Uma Devi (3) has crystalised the legal position that regularisation in public service can be made only in accordance with the conditions of service laid down in the statutory rules. The Courts do not have powers to direct the State Government to consider the persons, who have been working for a long time for regularisation. In Gaurav Tripathi's case the Government Order dated 23.1.2009 was not challenged, nor its validity was considered by the Court.
15. In the present case we find that the petitioner fall in different class altogether than those, who were appointed prior to 31.12.2006 . The petitioner has been teaching for about two years. The State Government considering the financial difficulties faced by the teachers, who were qualified and eligible and are taking classes has increased their honorarium from Rs.8000/- to Rs.12,000/-. The petitioner accepted the appointment with honorarium admissible to it. Instead of being grateful to the State Government for having increased the honorarium by 50%, he has approached the Court claiming parity with those, who has worked for three years and had become entitled to regularisation under Section 31E of the Act. We do not find that the petitioner has been discriminated as the persons, who were appointed with honorarium prior to 31.12.2006 had rendered more than three years of service. They were senior to the petitioner and that their claim for regularisation had also matured under Section 31E of the Act.
16. In State of Haryana v. Jasmer Singh, (1996) 11 SCC 77 and State of Haryana v. Tilok Raj, (2003) 6 SCC 123, it was held that the daily wager or adhoc employee are not entitled to the benefit of regular pay scale with increments, by claiming parity with regular employees. The judgments were quoted with approval in Surendra Nath Pandey v. U.P. Cooperative Bank Ltd., (2010) 12 SCC 400. The directions in Renu Tiwari's case were issued on 10.10.1995, before the law of regulaisation and regular pay was changed in State of Karnataka v. Uma Devi (3), by the Constitution Bench, and may be binding only inter-se between the parties.
17. The fact that the petitioner is eligible to be appointed as Lecturer and is teaching in the same classes in which his seniors are teaching, by itself would not give him any right to claim same honorarium, which the State Government has given by Government Order dated 23.1.2009, considering their seniority and number of years of the teachers working on honorarium and appointed prior to 31.12.2006.
18. The writ petition is dismissed.
Dt.12.12.2011 SP/