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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 4th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No.3341 of 2019.
Between:
MADAN LAL SHARMA SON OF SH. SHIV
KUMAR SHARMA, R/O VILLAGE CHAPRUHI,
P.O.PIR SULHI, TEHSIL RAKKAR, DISTRICT
KANGRA, H.P.
....PETITIONER
(BY SH. BHUVNESH SHARMA, SH.
RAMAKANT SHARMA AND SH. JAI RAM
SHARMA, ADVOCATES).
AND
1. STATE OF HIMACHAL PRADESH, THROUGH
PRINCIPAL SECRETARY (EDUCATION) TO
THE GOVERNMENT OF HIMACHAL
PRADESH, SHIMLA.
2. DIRECTOR ELEMENTARY EDUCATION,
HIMACHAL PRADESH, SHIMLA (HP).
....RESPONDENTS
(BY SH.SUDHIR BHATNAGAR AND SH. DESH
RAJ THAKUR, ADDITIONAL ADVOCATES
GENERAL WITH SH. R.P. SINGH, SH. KAMAL
KISHORE AND SH. NARINDER THAKUR,
DEPUTY ADVOCATES GENERAL)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
Petitioner herein was appointed as Shastri in a Privately Managed Indira Gandhi Memorial Middle School, Amlehar, Tehsil Nadaun, District Hamirpur, Himachal Pradesh on 06.06.1985. Petitioner continued to discharge his duties in the capacity of Shastri in the aforesaid school without ::: Downloaded on - 31/01/2022 23:00:46 :::CIS 2 there being any interruption till the year 1990 when aforesaid school was taken over by the State Government. Since services of the petitioner were not taken .
over by the Government despite there being assurance and completion of all the necessary formalities, he was compelled to file Original Application No.1195 of 1991 in the erstwhile H.P. Administrate Tribunal, which came to be disposed of with the direction to the respondents to treat the original application as representation to the Secretary (Education) to the Government of Himachal Pradesh with further direction to him to consider the same in the light of judgments passed by learned Tribunal below in TA No.876/86 (Sushil Kumar Kaushal Vs. State), TA No.875/86 (Smt. Maya Devi vs. State), OA No.175/88 (Sarwan Kumar vs. State) and OA No.160/90 (Surinder Kumar Vs. State) after affording an opportunity of being heard to the petitioner. Pursuant to aforesaid direction issued by learned Tribunal, respondent-Department treated the Original Application having been filed by the petitioner as representation and rejected the same by concluding in the order that as per the condition of the gift deed, Government was not bound to take over the services of the staff of the school. Respondents in order rejecting the representation observed that it was specifically mentioned in the gift deed that only the services of those staff will be considered for taking over by the State Government, who are found eligible under the instructions circulated in the month of June, 1985.
2. Being aggrieved and dissatisfied with the aforesaid order rejecting representation, petitioner approached this Court by way of CWP(T) No.5 of 2012, praying therein for following reliefs:-
"(i) That the respondents be directed to take over the services of the applicant.::: Downloaded on - 31/01/2022 23:00:46 :::CIS 3
(ii) That the respondent be directed to pay to the applicant all the consequential benefits, such as pay etc.
(iii) That the respondent be directed to pay the interest .
of 18% p.a."
3. This Court vide judgment dated 12th October 2012 (Annexure P-1) allowed the writ petition and quashed order rejecting representation and directed the respondent-State to appoint the petitioner as Shastri w.e.f.27.8.1990 i.e. from the date when Indira Gandhi Memorial Middle School, Amlehar, District Hamirpur was taken over, with all consequential benefits. r
4. Though, pursuant to aforesaid directions issued by this Court vide judgment dated 12th October, 2012, respondents appointed the petitioner as Shastri teacher on regular basis in the pay scale of Rs.1500-2700 w.e.f.27.8.90, 5000-8100 w.e.f.01.01.96 and 10300-34800 +3200 Grade Pay w.e.f.01.01.2006 w.e.f.27.08.1990, the date when Indira Gandhi Memorial Middle School Amlehar, District Hamirpur was taken over but since petitioner despite being his regular appointment made pursuant to order dated 21.9.2015 (Annexure P-2) was not given the pay scale as was given to the persons appointed on regular basis, he filed Original application bearing No.7779 of 2018, titled Madan Lal Sharma versus State of Himachal Pradesh and another, which came to be disposed of vide judgment dated 10.01.2019 (Annexure P-3). Aforesaid Original Application came to be disposed of with the direction to the respondents/competent authority to extend the benefit of the judgment passed by this Court in CWP (T) No.5759 of 2008, titled Subhash Chand and another versus State of Himachal Pradesh and others, decided ::: Downloaded on - 31/01/2022 23:00:46 :::CIS 4 on 5.7.2010. Tribunal below while passing aforesaid judgment specifically ordered that in case petitioner is found to be similarly situate, he be given .
benefit to the aforesaid judgment within a period of two months.
5. Pursuant to aforesaid judgment, petitioner filed representation (Annexure P-4), praying therein that he be given pay scale of Rs.1640-2925 w.e.f.27.8.1990. However, aforesaid representation having been filed by him came to be rejected vide order dated 4.9.2019 (Annexure P-5), whereby Deputy Director Elementary Education, Kangra at Dharamshala ordered that from the perusal of record as well as service book of the petitioner, it is amply clear that the applicant is not similar situate to the petitioner in CWP (T) No.5759 of 2008 titled as Subhash Chand and another versus State of Himachal Pradesh and others, because petitioner was appointed/taken over after 23.03.1989. In the aforesaid background, petitioner has approached this Court in the instant proceedings, praying therein for following reliefs:-
"(i). That the impugned rejection letter dated 04.09.2019 at Annexure P-5 may kindly be quashed and set-aside and petitioner may kindly be held entitled the grant the revised pay scale of Rs.5480-8100/- with all consequential benefits.
(ii). That the respondents further may very kindly be directed to grant of the pay scale of Rs.1640-2925 revised to Rs.5480-8925/- as is prescribed for the post of Shastri Teacher, instead of pay scale of Rs.1520-
2700 revised to 5000-8100/- as granted to him on his initial appointment on 27.08.1990, with all consequential benefits and arrears may kindly be ordered to be paid with interest, in the interest of justice."::: Downloaded on - 31/01/2022 23:00:46 :::CIS 5
6. Having heard learned counsel representing the parties and perused material available on record, this Court finds that there is no dispute .
interse parties that prior to taking over of the school by Government of Himachal Pradesh in the year 1990, petitioner was serving as Shastri teacher in Indira Gandhi Memorial Middle School Amlehar, Tehsil Nadaun, District Hamirpur. It is also not in dispute that since services of the petitioner were not taken over, he was compelled to approach this Court by way of CWP (T) No.5 of 2012 and this Court vide judgment dated 12th October, 2012, issued direction to the respondents to appoint petitioner as Shastri w.e.f. 27.8.1990, the date when Indira Gandhi Memorial Middle School, Amlehar, District Hamirpur, Himachal Pradesh was taken over with all consequential benefits.
7. It is also not in dispute that aforesaid judgment was not laid challenge, rather respondent complying with the aforesaid directions contained in the aforesaid judgment taken over the services of the petitioner as Shastri teacher on regular basis in the pay scale of Rs. of Rs.1500-2700 w.e.f.27.8.90, Rs.5000-8100 w.e.f.01.01.96 and Rs.10300-34800 +3200 Grade Pay w.e.f.01.01.2006 w.e.f.27.08.1990, as is evident from office order, dated 21.9.2015 (Annexure P-2). Since services of the petitioner vide order, dated 21.9.2015 (Annexure P-2) were ordered to be taken over on regular basis w.e.f. 27.8.1990 i.e. the date when Indira Gandhi Memorial Middle School Amlehar, District Hamirpur was taken over, he claimed pay scale of Rs. 1640-
2925, which at that time was being paid to the regularly appointed Shastries in the Department of education. However, such plea of him was rejected on the ground that since services of the petitioner was taken over after 23.3.1989, pay scale implemented prior to the same vide Notification dated 7.11.1988 ::: Downloaded on - 31/01/2022 23:00:46 :::CIS 6 (Annexure PR-1) cannot be made applicable in the case of the petitioner.
However, such plea taken by the respondent in case of other similarly situate .
person was not accepted by the competent court of law in CWP(T) No. 5759 of 2008 titled as Subhash Chand versus State of Himachal Pradesh and others and as such, Tribunal below while placing reliance upon the judgment rendered by this Court in aforesaid case of Subhash Chand, directed the respondent-department to consider and decide the case of petitioner in the light of observations/findings returned in the aforesaid judgment passed by this Court in Subhash Chand's case (supra). Competent authority again vide order dated 4.9.2019, rejected the prayer made on behalf of petitioner for grant of pay scale of Rs.1640-2925 on the ground that judgment passed by this Court in Subhash Chand's case (supra) cannot be made applicable in the case of the petitioner since he was appointed/taken over after 23.3.1989.
8. Order dated 4.9.2019 (Annexure P-5), passed by competent authority of law in purported compliance of order passed by learned Tribunal in Original Application No.7779 of 2018, decided on 10.01.2019 is not sustainable in the eye of law for the reason that same is not based upon proper appreciation of law laid down by this Court in Subhash Chand's case (supra), wherein it has been categorically held that administrative instructions, if any, issued cannot supersede rules framed under Article 309 of the Constitution of India. In Subhash Chand's case (supra), Co-ordinate Bench of this Court categorically ruled that if particular pay scale is prescribed for a particular post under R&P Rules, same cannot be superseded/ taken over by mere issuance of administrative instructions (Annexure P-6).
::: Downloaded on - 31/01/2022 23:00:46 :::CIS 79. Order dated 4.9.2019, passed by Deputy Director Elementary Education otherwise contains no reason for rejection of the case of the .
petitioner. Competent authority has simply stated that case of the petitioner is not similar to that of CWP(T) No.5759 of 2008 i.e. Subhash Chand and another.
Had the competent authority bothered to go through the judgment passed by Co-ordinate Bench of this Court in its entirety, probably it would not have passed order dated 4.9.2019, which is impugned in the instant proceedings.
Since there was specific direction to the competent authority to consider the case of the petitioner in the light of judgment passed by Co-ordinate Bench of this Court in CWP(T) No.5759 of 2018, it was under obligation to pass detailed order, specifically assigning therein reasons that why the case of the petitioner is not similar to that of Subhash Chand case (supra). Since Co-ordinate Bench of this Court in Subhash Chand case (supra) has already held that administrative instructions, if any, issued cannot supersede the rules framed under Article 309 of Constitution of India, respondent-department could not have denied the pay scale, to which petitioner is otherwise entitled in terms of R& P Rules qua the post in question.
10. In the case at hand, reply filed on behalf of respondents No.1 and 2, reveals that Government of Himachal Pradesh vide letter No.Shiksha-II-
Kha(4)3/89, dated 17.12.1991 clarified that those Shastries/Language Teachers, who were working on regular basis up to 23.03.1989, would be granted pay scale of s.1640-2925 as a measure personal to the incumbents, but once aforesaid pay scale of Rs.1640-2925 has been specifically provided vide Notification dated 7.11.1988 (Annexure PR-1), issued in exercise of power conferred under Section 309 of the Constitution of India and proviso to ::: Downloaded on - 31/01/2022 23:00:46 :::CIS 8 sub rule (1) of Rule 10 of the Vidhan Sabha( Recruitment and condition of service) Rules 1972, it is not understood that how aforesaid pay scale could be .
denied to the petitioner as well as other similar situate persons on the basis of clarification issued by the Government of Himachal Pradesh vide letter dated 17.12.1991, as has been taken note hereinabove. Perusal of aforesaid Notification dated 7.11.1988 (Annexure PR-1), reveals that though pay scales of Rs. 1640-2925, Rs.1800-3200, senior scale after 8 years, Rs. 2000-3500 senior scale after 18 years shall be a measure personal to the present incumbents. i.e., persons already rendering services at the time of issuance of notification, but in future masters (TGT) shall be appointed as Language masters.
11. Respondents in their reply have stated that since the petitioner has not annexed any record regarding his qualification as Shiksha Shastri or Shastri with O.T(Sanskrit)/B.Ed or B.A B.Ed having Sanskrit as an elective subject in BA and B. Ed with Sanskrit thus the pay scale of Rs. 1500-2700/- as allowed to all other Shastries and Language teachers (Annexure R-1) cannot be allowed to him. However, this Court is of the view that aforesaid plea raised by the respondents cannot be allowed at this stage, especially when there is no dispute that services of the petitioner were taken over as Shastri w.e.f.
27.8.1990, may be pursuant to the directions issued by Co-ordinate Bench of this Court in Subhash Chand's case (supra). Since, it is not in dispute that services of only those teachers, who were fully qualified were to be taken over, plea of qualification as has been raised at this stage by way of reply otherwise cannot be allowed to be raised with a view to defeat the legible claim of the petitioner. Since, services of the petitioner stands regularized/taken over as ::: Downloaded on - 31/01/2022 23:00:46 :::CIS 9 Shastri, he is entitled to pay scale of the post in question, as prescribed in the R & P Rules. Aforesaid pay scale cannot be denied on the basis of the .
clarification issued by way of administrative instructions. It is well settled that statutory rules framed under Article 309 of Constitution of India cannot be superseded/ substituted by issuance of administrative instructions, as has been held by Co-ordinate Bench of this Court in Subhash Chand case (supra).
12. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly same is allowed and order dated 4.9.2019 (Annexure P-5), passed by Deputy Director Elementary Education Kangra at Dharamshala, is quashed and set-
aside and respondents are directed to grant pay scale of Rs. 1640 to 2925/- to the petitioner with further revised pay scale from the date of taking over his services w.e.f.27.8.1990. Needful in terms of aforesaid directions issued by this Court shall be done expeditiously, preferably within a period of six weeks.
Pending applications, if any, also stands disposed of.
4th September, 2021 (Sandeep Sharma),
(shankar) Judge
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