Allahabad High Court
Ram Shanker Mishra vs State Of U.P.Through Secretary ... on 17 December, 2013
Bench: Vishnu Chandra Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 17 AFR
Reserved
Case :- SERVICE SINGLE No. - 2103 of 2010
Petitioner :- Ram Shanker Mishra
Respondent :- State Of U.P.Through Secretary Secondary Education Lucknow
Counsel for Petitioner :- Tung Nath Tiwari
Counsel for Respondent :- C.S.C.
Hon'ble Vishnu Chandra Gupta,J.
Heard Shri Tung Nath Tiwari, learned counsel for the petitioner and Shri Suresh Singh, learned Standing counsel appearing for opposite parties 1 to 5. None appeared for opposite parties 6 to 10.
By means of the present writ petition, the petitioner has prayed for issuing a writ in the nature of certiorari quashing the order dated 10.3.2010 passed by opposite party no. 5 District Inspector of School, Sitapur (for short 'DIOS') contained as Annexure no. 1 to the writ petition, rejecting the representation of the petitioner and declining the entitlement of salary as claimed by the petitioner and further prayed for issuing a writ in the nature of mandamus directing the opposite parties 1 to 7 to fix the salary as well as pension of the petitioner at par to his juniors opposite parties 8 to 10 and pay all the arrears accrued thereof alongwith interest at the rate of 24% per annum.
Brief facts for deciding this writ petition are that petitioner Ram Shanker Mishra was appointed as teacher in J.T.C. cadre in Ujagar Lal Inter College,Sitapur on 8.7.1961. He simply passed High School Examination. Sangam Lal Verma (now dead), Suresh Chandra Gupta and Awadesh Kumar Singh (opposite parties 8 to 10) were also appointed as teacher in the same school in JTC cadre on 9.7.1962, 9.7.1962 and 1.8.1964 respectively. The petitioner as well as opposite parties were subsequently given C.T.Grade in 1973 and L.T. Grade in 1986 respectively. The comparative chart of salary of petitioner and opposite parties 8 to 10 is also annexed as annexure no. 2 to the writ petition. When opposite parties 8 to 10 were awarded selection grade ignoring the claim of the petitioner, the petitioner submitted a representation for grant of selection grade to him on 24.5.1985 before opposite party no. 5 (Annexure no. 3 to the writ petition), but no action has been taken thereon by the authority concerned and the petitioner retired from service on 30.6.1997. Prior to his retirement, the petitioner had also represented his cause by moving a representation dated 30.10.1995 (Annexure No. 4 to the writ petition) mentioning therein that his juniors opposite parties 8 to 10 are getting more salary in comparison to the petitioner who is senior to them, but the same was also not decided. The petitioner again submitted representations dated 15.7.1997, 4.5.2007 and 24.7.2009 before the authority concerned (Annexure nos. 5,7 and 8 respectively), but no heed has been paid by the authority concerned to redress the grievance of the petitioner.
Consequently, the petitioner filled writ petition bearing no. 7853 of 2009 (S/S). This Court by means of order dated 26.11.2009 disposed of that writ petition directing the opposite party no.5 District Inspector of School to decide the representation dated 8.11.2006 preferred by the petitioner. In compliance of this order, the opposite party no. 5 decided the representation of the petitioner by impugned order dated 10.3. 2010 (Annexure no. 1 to the writ petition). It was contended on the strength of GO no. 6695/15 -181-198-3014/1981 dated 29th December, 1981 that petitioner is senior being appointed in 1961 prior to opposite parties 8 to 10. The petitioner passed intermediate examination in 1970. As such he is entitled to selection grade prior to opposite parties 8 to 10.
In para 2 of the the aforesaid G.O. it has been provided that the teachers who are working as on 1.7.1979 or in between 1. 7.1979 and 20.9.1981 in selection grade would be entitled to revised pay scale of new selection grade in terms of GO dated 29.11.1981. But those teachers whose service period is less than the period which has been fixed now to grant of selection grade, would be granted next increment in new pay scale of selection grade after one year of completing the prescribe period.
For ready reference GO dated 29th December 1981 is reproduced here-in-below:-
"संख्या-6695/15-181-198-3014/1981
प्रेषक,
गोविन्द नाराण मिश्र,
उप सचिव,
उत्तर प्रदेश शासन।
सेवा में,
शिक्षा निदेशक,
उत्तर प्रदेश,
इलाहाबाद/लखनऊ।
शिक्षा--(8) अनुभाग लखनऊ दिनांक-29 दिसम्बर, 1981
विषय-- सहायता प्राप्त उच्चतर माध्यमिक विद्यालयों के शिक्षण कर्मचारियों की द्वितीय उत्तर प्रदेश वेतन आयोग (1979-80) की संस्तुतियों पर लिये गये निर्णयों के अनुसार चयन वेतनमान की स्वीकृति।
महोदय,
शासकीय संकल्प संख्या--वै०आ०-1590/1599/दस-42 (एम)/1980 दिनांक- 29 सितम्बर, 1981 तथा तत्पश्चात शासन द्वारा लिये गये निर्णयों के आधार पर राज्यपाल महोदय ने आपके अधीन, नीचे दी गयी तालिका के सतम्भ-1 में उल्लिखित संवर्गों/पदों पर जिनका साधारण वेतनमान उल्लिखित चयन वेतनमान अनुमन्य किये जाने की सहर्ष स्वीकृति प्रदान कर दी है--
क्रमांक
पद अथवा सेवा का नाम
साधारण वेतनमान रुपया
चयन वेतनमान रुपया
1.
प्रधानाचार्य इन्टर कालेज
850-1720
1360-1420 द० रो०-60-1900
2.
प्रवक्ता
650-1280 तथा वर्तमान चयन वेतनमान 450-850
960-40-1080-50-1480
3.
सहायक अध्यापक (प्रशिक्षित स्नातक)
540-910 तथा वर्तमान चयन वेतनमान 350-700
740-20-760-30-910 द०रो०-3010-1090
4.
सहायक अध्यापक
(प्रशिक्षित इण्टर)
450-720 साधारण वेतनमान 280-460 चयन वेतनमान
620-16-700-20-720 द० रो०-20-820
(i) उपर्युल्लिखित तालिका के स्तम्भ 1 में उल्लिखित श्रेणी के प्रत्येक शिक्षण कर्मचारी उसी पद पर लगातार 16 वर्ष की सन्तोषजनक सेवा पूर्ण कर लेने के उपरान्त स्तम्भ 4 में उल्लिखित चयन वेतनमान प्राप्त करने का पात्र हो जायेगा। बशर्ते कि कर्मचारी इससे पूर्व उच्चतर पद पर पदोन्नति न हुआ हो।
(ii) चयन वेतनमान में उन्हीं नियमित शिक्षण कर्मचारियों को नियुक्त किया जायेगा जिनका कार्य आचरण ऎसा सन्तोषजनक रहा हो कि जिसके आधार पर वे प्रोन्नत किये जाने के लिये उपयुक्त हों परन्तु प्रोन्नति के लिए पद उपलब्ध न हों।
2- मुझे यह भी कहने का निर्देश हुआ है कि दिनांक-1 जुलाई, 1979 को अथवा दिनांक-1 जुलाई, 1979 एवं सितम्बर, 1981 के मध्य जो शिक्षक कर्मचारी वेतनमान आदेशों के अधीन चयन वेतनमान के कार्य कर रहे हों, उन्हें अनुमन्य नये वेतनमान में शासनादेश संख्या वे०आ०-2191/दस-39(एम) 1981 दिनांक 20 नवम्बर, 1981 में प्रसारित आदेशानुसार वेतन निर्धारण का लाभ दिया जाय, परन्तु यदि उनकी सेवा अवधि उस अवधि से कम है जो चयन वेतनमान की अनमन्यता के लिए अब निर्धारित की गई हो तो उन्हें नये चयन वेतनमान में अगली वेतनवृद्घि निर्धारित अवधि पूरी करने के एक वर्ष के बाद स्वीकृत की जायेगी। दिनांक- 29 सितम्बर, 1981 के पश्चात किसी कर्मचारी की चयन वेतनमान में नियुक्त कार्यालय ज्ञान संख्या-वे०आ०-1842/दस-48 (एम)-1981 दिनांक-25 नवम्बर, 1981 में उल्लिखित मापदन्डों की पूर्ति के उपरान्त ही की जायेगी।
3- नये वेतनमानों में प्रारम्भिक वेतन निर्धारण के पश्चात जब कोई कर्मचारी चयन वेतनमान में नियुक्त किया जायेगा तो चयन वेतनमान में उसका वेतन वित्त सामान्य अनुभाग-2 के शासनादेश संख्या-पी०-2-1456/दस-302-1981. दिनांक-30 अक्टूबर, 1981 के अनुसार उस पद से साधारण वेतनमान में प्राप्त/आहरित वेतन के ऊपर वाले उच्चतर क्रम पर निश्चित किया जायेगा।
4- यह आदेश बिल विभाग के शासकीय संख्या वे०आ० 975/दस-1982, दिनांक-29 दिसम्बर, 1981 में प्राप्त उसकी सहमति से जारी किये जा रहे हैं।
भवदीय
गोविन्द नारायण मिश्र
उप सचिव।"
Perusal of impugned order reveals that claim of the petitioner was declined for the reason that opposite parties 8 to 10 were already getting selection grade from 1.7.1980. Though the petitioner was working in CT Grade because his qualification was not intermediate trained teacher. Consequently the petitioner could not get selection grade and continued in CT Grade. So the person from whom the petitioner claims parity is not based on similar footing and consequently the petitioner's claim was declined by the impugned order.
It is not in dispute that by GO dated 29th September, 1981 the benefit of new pay scale has been given to four categories of teachers- first apply for Principal of intermediate college, second for lecturer, third for assistant teacher (trained graduate) and fourth for assistant teacher (trained intermediate).
Admittedly, on the date of recruitment in year 1961 the petitioner was not intermediate. He acquired qualification of intermediate as per his own admission in 1970. Therefore, it cannot be said that opposite parties 8 to 10 are similarly situated person. So far as opposite parties 8 to 10 are concerned, the benefit of pay scale of selection grade was admitted to them after completion of satisfactory service of 16 years.
Counter affidavit has been filed on behalf of opposite parties 1 to 5 taking similar stand on the basis of which the claim of the petitioner has been declined.
In the aforesaid factual matrix it has to be seen that the period of 16 years satisfactory service starts from when? whether a teacher who is simply High School could get selection grade?
The case of the petitioner is that once the petitioner acquired requisite qualification after appointment in JCT grade, he will deemed to be entitle to selection grade after completion of 16 years from the date of initial appointment.
I do not find any substance in the submission of the petitioner. A teacher who is appointed with qualification of High School, cannot claim parity with those teachers who are trained intermediate at the time of recruitment. Admittedly, the petitioner acquired qualification of intermediate in 1970 i.e. after joining opposite parties 8 to 10 as teachers having qualification of intermediate.
Even for sake of argument if it is presumed that the petitioner acquired requisite qualification of intermediate to get selection grade in 1970 then in that case the period of satisfactory service of 16 years shall be reckoned from the date of acquiring of requisite qualification and not retrospectively from the date of initial appointment.
In the aforesaid scenario though the petitioner was appointed in 1961 but he cannot claim seniority over opposite parties 8 to 10 on the basis of length of service. It is also important to mention here that C.T. Grade itself was abolished and declared to be dead cadre on 1.1.1986. Even if the petitioner is deemed to be in cadre of L.T. grade on 1.1.1986, then he could not complete 16 years satisfactory service prior to completion of 16 years satisfactory service by opposite parties 8 to 10 for getting selection grade in terms of G.O. dated 29th December, 1981 .
The learned counsel for the petitioner has relied upon a judgment of the Apex Court reported in (2009) 3 SCC. 94, Guru Charan Singh Grewal and another Vs. Punjab State Electricity Board and others.
From perusal of this judgment it reveals that on fact it is not applicable in the present case. In this case promotional scale to appellant no. 1 was granted w.e.f. 1.1.1996 where the benefits of increment in the scale were lower. On other hand, Shri R.P.Shori who joined the services of the Board in 1974, was granted the promotional scale on 17.5.2006, w.e.f 1.9.2001, when the increments and the pay scales were higher. The Apex court noticed that the benefit of incremental disparity would not be of any consequence as both persons are working in the same pay scale. Therefore, appellant was granted benefit of payment of equal pay which was payable to junior.
In that situation, if similarly situated persons are discriminated on the basis of salary, it will violate the rules that junior cannot get more salary to his seniors.
I am of the view that in the case in hand is not of incremental disparity to the same pay scale, but was due to the reason that petitioner was not entitled to benefit of selection grade for want of requisite educational qualification in comparison to opposite parties 8 to 10. The opposite parties 8 to 10 got the benefit of promotional pay on the basis of their educational qualification in comparison to petitioner who admittedly acquired requisite qualification to get the benefit of selection grade pay after opposite parties 8 to 10, so the persons who are already qualified for promotion cannot be equated with those who are not having qualification on the date of promotion or granting benefit of selection grade. Therefore, I do not find any illegality in the impugned order. No interference is warranted by this Court.
On the basis of facts and circumstances of the case the petitioner cannot said to have parity with opposite parties 8 to 10 and cannot claim to be senior to them in rank for getting the benefit under the aforesaid GO.
Consequently the writ petition lacks merit and is accordingly dismissed.
No order as to costs.
Order Date: 17.12.2013
GSY
