Himachal Pradesh High Court

Kumar Sharma vs (Sarwan Kumar Vs. State) And Oa ... on 4 September, 2021

Bench: Sandeep Sharma

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

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.

(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

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."

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

(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).

9. 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

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

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