Himachal Pradesh High Court
Ranjit Singh And Others vs State Of H.P. And Others on 7 July, 2023
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
C.W.P. No. 2500 of 2021 a/w
connected matters.
Judgment reserved on : 26.06.2023
.
Date of decision : 07.07.2023
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1. CWP No. 2500 of 2021
Ranjit Singh and others Petitioners
Versus
State of H.P. and others Respondents
2. CWP No. 2524 of 2021
Sushil Kumar Dhiman and others Petitioners
r Versus
State of H.P. and others Respondents
3. CWP No. 3129 of 2021
Pawan Kumar and others Petitioners
Versus
State of H.P. and others Respondents
4. CWP No. 3204 of 2021
Amir Chand and others Petitioners
Versus
State of H.P. and others Respondents
5. CWP No. 3206 of 2021
Vijay Kumar and others Petitioners
Versus
State of H.P. and others Respondents
6. CWP No. 3207 of 2021
Diwakar Dutt Sharma and others Petitioners
.
Versus
State of H.P. and others Respondents
7. CWP No. 3209 of 2021
Depan Lal and others Petitioners
Versus
State of H.P. and others Respondents
8. CWP No. 3210 of 2021
Trilok Chand and others Petitioners
Versus
State of H.P. and others Respondents
9. CWP No. 3359 of 2021
Hardyal Singh Thakur and others Petitioners
Versus
State of H.P. and others Respondents
10. CWP No. 3384 of 2021
Mohan Lal Petitioners
Versus
State of H.P. and others Respondents
11. CWP No. 3913 of 2021
Ranjit Kumar and others Petitioners
Versus
State of H.P. and others Respondents
12. CWP No. 3923 of 2021
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Harish Kumar and others Petitioners
Versus
State of H.P. and others Respondents
13. CWP No. 3956 of 2021
Amar Singh and others Petitioners
r Versus
State of H.P. and others
14. CWP No. 3957 of 2021
to Respondents
Abhinay Sood and others Petitioners
Versus
State of H.P. and others Respondents
15. CWP No. 3958 of 2021
Vinod Kumr and others Petitioners
Versus
State of H.P. and others Respondents
16. CWP No. 3959 of 2021
Kishori Lal and others Petitioners
Versus
State of H.P. and others Respondents
17. CWP No. 3960 of 2021
Om Parkash and others Petitioners
Versus
State of H.P. and others Respondents
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18. CWP No. 3961 of 2021
Ashok Kumar and others Petitioners
Versus
State of H.P. and others Respondents
19. CWP No. 3962 of 2021
Raghubir Singh and others
r Versus
State of H.P. and others
to Petitioners
Respondents
20. CWP No. 3963 of 2021
Swarn Guleria and others Petitioners
Versus
State of H.P. and others Respondents
21. CWP No. 3964 of 2021
Rajinder Kumar and others Petitioners
Versus
State of H.P. and others Respondents
22. CWP No. 3965 of 2021
Sharan Vir and others Petitioners
Versus
State of H.P. and others Respondents
23. CWP No. 3966 of 2021
Rakesh Chand and others Petitioners
Versus
.
State of H.P. and others Respondents
24. CWP No. 3967 of 2021
Rajesh Kumar and others Petitioners
Versus
State of H.P. and others Respondents
25. CWP No. 3968 of 2021
Ajeev Kumar and others
Versus
to Petitioners
State of H.P. and others Respondents
26. CWP No. 3969 of 2021
Rajinder Singh and others Petitioners
Versus
State of H.P. and others Respondents
27. CWP No. 3970 of 2021
Vijay Kumar and others Petitioners
Versus
State of H.P. and others Respondents
28. CWP No. 3971 of 2021
Ajay and others Petitioners
Versus
State of H.P. and others Respondents
29. CWP No. 3972 of 2021
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Kaur Chand and others Petitioners
Versus
State of H.P. and others Respondents
30. CWP No. 5082 of 2021
Shammi Devi and others Petitioners
Versus
State of H.P. and others
31. CWP No. 6339 of 2021
Joginder Pal Verma and others
to Respondents
Petitioners
Versus
State of H.P. and others Respondents
32. CWP No. 7079 of 2021
Indu Bala Sharma and others Petitioners
Versus
State of H.P. and others Respondents
33. CWP No. 7080 of 2021
Surjit Singh and others Petitioners
Versus
State of H.P. and others Respondents
34. CWP No. 2935 of 2022
Hari Singh Ranta and others Petitioners
Versus
State of H.P. and others Respondents
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Coram :-
Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting ? Yes
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For the Petitioners : S/Shri Onkar Jairath, Shubham Sood, Naresh Kaul
and Parkash Sharma, Advocates, for the respective
petitioner(s) in the respective petitions.
For the Respondents : Mr. Anup Rattan, Advocate General, with Mr.
Y.P.S. Dhaulta, Mr. Rupinder Singh, Mr. Varun
Chandel, Additional Advocates General with Mr.
Sumit Sharma, Deputy Advocate General, for the
r State-respondents in all the petitions.
.
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Jyotsna Rewal Dua, Judge
All these petitions involve common question of law and facts,
hence are being taken up together for adjudication. For convenience, facts
and pleadings from lead case CWP No. 2500 of 2021 (Ranjit Singh and
others Vs. State of H.P. and others) are being referred to hereinafter.
Petitioners are presently serving as Head Teachers/Central Head
Teachers in the State Education Department. With the basic grievance of
denial of increments on their promotion as Head Teachers and
discrimination meted out to them on this count vis-à-vis other Head
Teachers, who have been given promotional increments on promotion to
the post of Head Teachers, the petitioners have preferred these writ
petitions.
2. The case
.
2(i) Petitioners were appointed as Junior Basic Teachers (JBT) in
respondent-Education Department on different dates. They satisfy the
criteria laid down under the applicable Recruitment and Promotion Rues
(R&P Rules).
2(ii) Post of JBT held by the petitioners is feeder cadre for promotion
to the post of Head Teacher. Post of Head Teacher is feeder category post
for promotion to the post of Central Head Teacher.
All the petitioners were promoted as Head Teachers. Some of
them now stand promoted to the post of Central Head Teacher.
2(iii) Present dispute pertains to the claim of the petitioners to the
promotional increment on their promotion to the post of Head Teacher.
Therefore, it will be appropriate to first take note of pay scale enjoyed by
the post of JBT and Head Teacher (HT).
1. 2. 3. 4.
Sr. No. Date J.B.T. H.T.
Pay scale Pay scale
1. w.e.f. 01.01.1986 Rs. 1200-2100 1410-2750
2. w.e.f. 01.01.1996 Rs. 4020-6200 4550-7220
Further revised to Rs. 4550-7200
3. w.e.f. 01.01.2006 Rs. 5910-20200 + 3,000 (GP) 10300-343800 +
after two years of service Rs. 10300- 4200 (GP)
34800 + 4200 (GP)
The above table is indicative of the fact that petitioners
and other similarly situated JBTs were initially fixed in the pay scale of
Rs. 1200-2100 w.e.f. 01.01.1986. Pay of Head Teachers was fixed in the
.
pay scale of Rs. 1410-2750 w.e.f. 01.01.1986. Pre-revised pay scale of
JBTs was revised to Rs. 4020-6200 w.e.f. 01.01.1996. Subsequently,
this scale was further revised to Rs. 4550-7220 w.e.f. 01.01.1996. Post
of Head Teacher was carrying the pay scale of Rs. 4550-7220 w.e.f.
01.01.1996. This was the same scale that was granted to JBTs.
According to the petitioners, the post of Head Teacher carries higher
responsibilities than the ones attached to the post of JBT. The petitioners
though were promoted to the post of Head Teachers, but they remained
in the pay scale of Rs. 4550-7220 which was being enjoyed by them as
JBTs. With effect from 01.01.2006, the respondents introduced the
system of pay band and grade pay. Pay of JBTs was revised and re-fixed
in the pay band of Rs. 5910-20200 + 3000/- (G.P.) on their fresh
appointment. After two years of regular service, the JBTs were to be
granted the pay band of Rs. 10300-34800 + 4200 (G.P.). The Head
Teachers were also granted the same pay band and grade pay i.e. Rs.
10300-34800 + 4200 (G.P.).
2(iv) The petitioners-JBTs were promoted as HTs, but not given
promotional increments. Instead, they were given placement allowance
of Rs. 100/- per month.
2(v) The respondents issued a Notification on 27.09.2012
revising pay of its employees. The pay-scale enjoyed by JBTs-HTs also
underwent revision. It was re-fixed as under :-
.
Post Pre-revised Pay Revised Pay (Pay Band and
Grade Pay) w.e.f. 01.10.2012.
JBT Rs. 5910-20200 Rs. 10300-34800 + 4200 GP
+ 3000 GP
HT Rs. 5910-20200 Rs. 10300-34800 + 4400 GP
+ 3000 GP
JBTs got grade pay of Rs. 4200/-, whereas HTs got grade
pay of Rs. 4400/- w.e.f. 01.10.2012. All those JBTs, who got promoted
as HTs were to get Rs. 4400/- as grade pay. The petitioners having been
promoted as HTs also got this benefit and their grade pay was fixed at
Rs. 4400/- w.e.f. 01.10.2012.
3. The Controversy
None of the incumbents who were promoted as Head
Teacher were granted promotional increments. On 27.11.2014, the
respondent-State took a decision to grant promotional increments to the
Head Teachers, but this benefit was confined only to such HTs who
were promoted after 01.10.2012. This has triggered filing of instant
petition. According to the petitioners, they having been promoted as
HTs prior to 01.10.2012 cannot be denied benefit of promotional
increment merely on the ground that they were promoted as HTs prior
to 01.10.2012, whereas according to the respondents, the petitioners are
not entitled for promotional increment as HTs for the reason that :- (a)
the petitioners were posted/placed to work as HTs in the existing scale
(Rs. 4550-7220) w.e.f. 01.01.1996, Rs. 5910-20200 w.e.f. 01.01.2006
.
and (b) in lieu of petitioners' placement as HTs, they were paid
allowance of Rs. 100/- p.m. prior to grant of higher grade pay of Rs.
4400/-.
During hearing of the case, learned counsel for the
petitioners made a factual submission that allowance of Rs. 100/- p.m.
paid to the petitioners was withdrawn by the respondents after the filing
of writ petition.
4. Observations
On hearing learned counsel on both sides, my
observations are as under :-
4(i) Legal position
In 1983 (1) SCC 305 ( D.S. Nakara and others Vs.
U.O.I. ), it was held that the employer shall not discriminate and divide
the homogeneous class of employee and deprive one of them by the
artificial device of a cut off date.
In AIR 2023 SC 792 ( Maharashtra State Financial
Corporation Ex-employees Association and others Vs. State of
Maharashtra and others, the Hon'ble Apex Court reiterated that pay
revision & the extent thereof, are undoubtedly matters falling within the
domain of executive policy making. Whilst, the fixation of cut-off date
for the grant of benefits cannot be questioned, what is within the domain
of the Court, is to examine the impact of such fixation and whether it
.
results in discrimination. In the facts of that case, the respondent had
confined the grant of revised pay scales to employees existing as on
29.03.2010. The Pay Commission's recommendations for pay revision
in the case were w.e.f. 01.01.1996. The State decided not to implement
it from that date, but w.e.f. 01.01.2006 because the benefit given to the
employees (arrears) on role of the employer as on 29.03.2010 were
limited to arrears payable from 01.01.2006. The Hon'ble Apex Court
noticed various precedents, including 2006(9) SCC 630 (U.P.
Raghavendra Acharya & Ors. Vs. State of Karnataka & Ors.),
wherein it was held that teachers of Government aided Colleges as also
the teachers of Regional Engineering Colleges formed a class by
themselves and no discrimination could have been made between the
employees who retired prior to 31.3.1998 and those retiring subsequent
thereto. The Court held that discrimination brought about on the basis of
date of retirement was invidious. It would be profitable to extract
following concluding paras from the judgment in Maharashtra State
Financial Corporation's case (supra) :-
"36. In the present case, too, there is no denial that the employees who
retired prior to 29.03.2010 discharged the same duties as in the case of
those who did thereafter. The quality and content of responsibilities
assigned to them were the same. The respondents' decision not to grant
arrears prior to 01.01.2006 cannot be found fault with; however, not to
grant any revision to those who were not in service when the order
implementing the pay revision was issued and confining it to those, in
employment is clearly discriminatory. The rationale that granting such pay
revision only to existing employees would be to enthuse them to recover
.
NPA amounts payable to MSFC has no rational nexus with the object sought
to be achieved by the pay revision, which is to benefit employees and protect
them from the rise in the cost of living.
37. In the present case, therefore, applying the ratio in the above decisions,
it is clear that there is no distinction between those who retired (or died in
service) before 29.03.2010 and those who continued in service - and were
given the pay revision. Those who worked during the period 01.01.2006 to
29.03.2010 and those who continued thereafter, fell in the same class, and a
further distinction could not be made. The fact that the MSFC did not
recover any interim relief, or ad-hoc amount disbursed between 18.09.1996
to 31.12.2005 (towards recommendations of the 5th Pay Commission), also
reaffirms that these ex-employees belonged to the same class as those that
received the benefit of the pay revisions. The exclusion of the retired
employees, who retired between 01.01.2006 and 29.03.2010 on achieving
their date of superannuation, is violative of Article 14 of the Constitution of
India."
4(ii) In the backdrop of above legal position, facts of present
case be now examined.
4(ii) (a) All the HTs in service on 01.10.2012 are constituents of
one common block of HTs. It is an admitted factual position that HTs
promoted prior to 01.10.2012 were not granted promotional increments
wherein HTs promoted as such after 01.10.2012 have been granted
promotional increments w.e.f. 01.10.2012. The respondents cannot
restrict grant of promotional increment only to those HTs who got
promoted as such after 01.10.2012.
4(ii) (b) The respondents have created a class within the same set
.
of employees. Category of HTs has been divided into two groups, one
who got promoted prior to 01.10.2012 and the other, who were
promoted after 01.10.2012. There is no rational behind creating these
two groups. Such an action of the respondents in creating these groups
for the purpose of paying promotional increment is illegal, arbitrary and
violative of Articles 14 & 16 of the constitution of India.
4(ii) (c) The petitioners, who were promoted as HTs prior to
01.10.2012 or the other incumbents who were promoted as HTs after
01.10.2012 remained as HTs and enjoy the same pay-scale. They are to
discharge the same and similar duty. Their promotions prior to
01.10.2012 or after 01.10.2012 will not create any difference insofar as
their entitlement to promotional increment is concerned.
4(iii) There is no object or nexus sought to be achieved by
creating an artificial class in the cadre of HTs. The main argument
pleaded by the respondents that the petitioners on their
promotion/placement as HTs were granted Rs. 100/- as monthly
allowance also falls flat in view of factual assertion made by the learned
counsel for the petitioners that this amount now stands withdrawn by the
respondents from all the petitioners.
4(iv) Viewing from any angle, it has to be held that irrespective
of their dates of promotions as HTs, which are all prior to 01.10.2012,
the petitioners are also entitled to the benefit of promotional increments
.
at least w.e.f. 01.10.2012/the date when the respondents decided to
release this benefit to the incumbents who were promoted as HTs after
01.10.2012.
5. For all the aforesaid reasons, these writ petitions are
allowed. The respondents are directed to release the promotional
increments to the petitioners to the post of Head Teachers w.e.f.
01.10.2012/the date from which the promotional increment has been
released to such of Head Teachers who were promoted as such after
01.10.2012. This exercise be carried out within six weeks, failing which
the amount shall carry interest @ 5% p.a. All the pending applications,
if any, to stand disposed of.
7th July, 2023 (K) Jyotsna Rewal Dua,
Judge
