Arvind Kumar Sinha vs The Principal
2023 Latest Caselaw 2 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

                   A.C.(S.B.) No. 2 of 2016
Arvind Kumar Sinha, Son of Late Raj Mohan Prasad, Resident of Sector-
4/G, Quarter No.1016, P.O. & P.S. Bokaro Steel City, District-Bokaro.
                                              .......               Appellant
                          Versus
The Principal, M.G.M. Higher Secondary School, Sector-IV/F, P.O. & P.S.
Bokaro Steel City, District-Bokaro.           .......              Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant         : Mr. Manish Kumar, Advocate
For the Respondent        : Mr. Raj Kumar Gupta, Advocate
                          : Mr. Nipun Bakshi, Advocate
                                  -----------
             nd
11/Dated: 02 January, 2023

The instant appeal has been filed under Section 15 of the Jharkhand

Education Tribunal Act, 2005 wherein the order dated 23.09.2013 in Case

No.23 of 2011 (JET) has been assailed by which the claim of the appellant

for seeking pay scale at par with the rent of the teacher (TGT) has been

negated.

2. The brief fact of the case as per the pleading made in this appeal

which requires to be enumerated, reads as under:

It is the grievance of the appellant that even though he is possessing

the required qualification and experience of teaching in higher classes but

the pay scale as to the post of trained graduate teacher (TGT) is not being

extended in favour of the appellant. Such grievance has been raised by

making out a case that the similarly situated persons, namely, Mrs. Mamta

Jaiswal, Miss Saroj and Mrs. Nilanjana Choudhary, have been

promoted/elevated to trained graduate teacher (TGT) and thereby they are

being extended the pay scale as to the post of trained graduate teacher (TGT)

but such benefit is not being extended to him, therefore, an application was

filed before the Tribunal for seeking a direction to extend the appellant to the

post of trained graduate teacher (TGT).

The matter was heard. After hearing the appellant as also the

management the order was passed on 23.09.2013 rejecting the claim of the

appellant on the ground that the appellant, though primary teacher (PRT),

might have taken classes of higher standard and might have been sent for

evaluation work by the School Management considering the educational

qualification, but that does not give him any right to jump the regular

channel, that is appointment against a vacancy, the same is the subject

matter of the instant appeal.

3. Mr. Manish Kumar, learned counsel appearing for the appellant has

submitted that the Tribunal while negating the claim of the appellant has not

appreciated the fact about the different treatment having been given in

favour of the appellant while such relief has been extended in favour of other

similarly situated, therefore, the order passed by the Tribunal is not

sustainable being not considered by taking into consideration the principle

laid down under Article 14 of the Constitution of India and therefore, the

order impugned under appeal is fit to be quashed and set aside.

4. Mr. Raj Kumar Gupta, learned counsel appearing for the respondent

while on the other hand has defended the order passed by the Tribunal, inter

alia, on the ground that the appellant since is having no appointment in the

trained graduate teacher (TGT) and merely because he has been allowed to

discharge his duty as TGT that does not confer any right to claim the salary

attached to the post of TGT.

He has further submitted by refuting the contention raised on behalf of

the appellant so far as the violation of principle laid down under Article 14

of the Constitution of India, the same will not be applicable, since, if any

other teaching staffs have been given the status of TGT even though there is

no appointment to the said post that does not confer any right upon the

appellant to claim the post/scale attached to the post of trained graduate

teacher (TGT). Such submission has been made on the ground that merely

asking an employee to discharge duty to the higher post contrary to the

attachment to such post on the substantive basis does not confer any right to

claim the pay scale attached to the higher post and that to merely because

such teaching staff has been assigned the duty to discharge the duty of the

higher status.

It has, therefore, been submitted that the Tribunal after taking into

consideration these aspects of the matter since has refused to grant any relief

to the appellant by dismissing the application, the same cannot said to be

suffer from an error and accordingly, the instant appeal is fit to be dismissed.

5. This Court has heard learned counsel appearing for the parties,

perused the document available on record as also the finding recorded by the

Tribunal as impugned in the instant appeal.

The fact which is not in dispute in this case is that the appellant was

appointed as primary teacher (PRT), however, also not in dispute that so far

as the claim of the appellant is that he is possessing the qualification

attached to the post of TGT basis upon which the appellant has been allowed

to discharge duty attached to the post of TGT. The appellant since has been

allowed to discharge duty attached to the post of TGT has raised a claim for

his absorption or taking over from PRT to TGT as also to release the salary

attached to the post of TGT. The grievance having not been redressed,

therefore, the appellant has preferred an application before the Tribunal for

seeking such direction but since the said application has been dismissed,

therefore, the instant appeal assailing the order passed by the Tribunal,

which is the subject matter of the instant appeal.

6. This Court before proceeding to examine the legality and propriety of

the order passed by the Tribunal, deem it fit and proper to refer the judicial

pronouncements regarding the entitlement to hold the post of a teacher.

It is the settled position of law that an employee if inducted into the

service he is supposed to govern either under the service code or if the

institutions are private then the terms and conditions referred in the offer of

appointment binds the parties.

Here in the instant case, the appellant since is working in the

management which is private in nature of the concerned school and as such

he at the time of appointment had been issued with the offer of appointment

reflecting therein the terms and conditions as also mentioned therein the

nature of appointment and the pay scale attached to the said post. The

position of law as has been rendered by the Hon'ble Apex Court in the case

of State of M.P. vs. Sandhya Tomar reported in (2013) 11 SCC 357,

wherein, as under paragraph- 9 it has been held that the terms and conditions

as mentioned in the offer of appointment so far as the service which is in the

nature of contract or in the private management is to be governed with the

terms and conditions contained in the offer of appointment, reference of

paragraph- 9 which requires to be referred, reads as under:

"9. There can be no dispute with respect to the settled legal proposition that in the event that a person is not appointed on a regular basis, and if his service is not governed by any statutory rules, he shall be bound by the terms and conditions that have been incorporated in his appointment letter. (Vide State of Punjab v. Surinder Kumar) In such an eventuality, there can be no reason with respect to why the terms and conditions incorporated in the appointment letter should not be enforced against such an employee."

7. Herein in the instant case, it is not in dispute that the appellant was

appointed as primary teacher (PRT) and the said post is having specific pay

scale. However, the appellant was allowed to discharge duty at the status of

trained graduate teacher (TGT) and thereby he has claimed to extend the

benefit attached to the post of TGT. The further position of law is well

settled that merely because an employee has been asked to discharge duty to

the higher post in the officiating capacity that does not entitle such employee

to claim the benefit attached to the officiating post, reference in this regard

may be made to the judgment rendered by Hon'ble Apex Court in the case

of Ramakant Shripad Sinai Advalpalkar v. Union of India reported in

1991 Supp (2) SCC 733 wherein at paragraph-5 it has been observed, which

reads as under:

"5. The arrangements contemplated by this order plainly do not amount to a promotion of the appellant to the post of Treasurer. The distinction between a situation where a government servant is promoted to a higher post and one where he is merely asked to discharge the duties of the higher post is too clear to require any reiteration. Asking an officer who substantively holds a lower post merely to discharge the duties of a higher post cannot be treated as a promotion. In such a case he does not get the salary of the higher post; but gets only what in service parlance is called a "charge allowance". Such situations are contemplated where exigencies of public service necessitate such arrangements and even consideration of seniority do not enter into it. The person continues to hold his substantive lower post and only discharges the duties of the higher post essentially as a stop-gap arrangement."

8. Herein in the instant case also the appellant was appointed on

substantive basis as PRT which is having specific pay scale. He now claims

that he be given the pay scale attached to the post of TGT since he was

allowed to discharge duty to the post of TGT. Therefore, the admitted case

of the appellant is that even though he was having the substantive post of

PRT but since he has been allowed to discharge duty to the post of TGT,

therefore, he is entitled to get the pay scale of TGT.

But, according to the considered view of this Court, and as per the

authoritative pronouncement as referred hereinabove that merely because the

appellant was allowed to discharge duty to the higher post in the officiating

capacity depending upon the exigency that does not confer any right upon

such employee to claim pay scale attached to such post.

The appellant, however, has tried to impress before the Tribunal as

also before this Court that other similarly situated concerned employee have

been given the said benefit and as per the impugned order the names have

also been find mentioned, i.e., Mrs. Mamta Jaiswal, Miss Saroj and Mrs.

Nilanjana Choudhary and therefore, the argument has been advanced that

giving the same benefit to the others and denying the same is nothing but a

piece of hostile discrimination which is in the teeth of Article 14 of the

Constitution of India.

9. This Court on appreciation of the aforesaid argument, is of the view

by taking into consideration the principle laid down under Article 14 of the

Constitution of India which envisages positive equality and not the negative

equality as has been held by Hon'ble Apex Court in the case of Basawaraj

vs. Land Acquisition Officer reported in (2013) 14 SCC 81 wherein at

paragraph- 8 it has been observed, which reads as under:

"8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated. Equality is a trite, which cannot be claimed in illegality and therefore, cannot be enforced by a citizen or court in a negative manner. If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision. Even otherwise, Article 14 cannot be

stretched too far for otherwise it would make functioning of administration impossible."

10. The case of hostile discrimination which is being placed by the

learned counsel appearing for the appellant will be said to be maintainable if

the appointment of the appellant would have been on the sanctioned post of

TGT. But admittedly the appointment so made in favour of the appellant

was against the sanctioned post of PRT, therefore, once the appellant has

been appointed against the sanctioned post of PRT the appellant is having no

right to claim to treat his appointment as otherwise, the same will be allowed

to filling of the post by way of grant in promotion. Even if some of the PRT

have been allowed to discharge duty as TGT and what is being said on

behalf of the appellant that he may be extended such benefit, even accepting

the same that also does not entitle the appellant to claim such benefit in view

of the fact that the appellant has substantively been appointed as PRT and

merely because some of the employees have been allowed to work as TGT

that does not confer any right upon the appellant to claim such benefit taking

into account the principle of positive equality which is the basic principle to

be looked into while considering the applicability of Article 14 of the

Constitution of India.

11. This Court, after having discussed the fact in entirety as also the legal

position as above, has considered the order passed by the Tribunal and found

therefrom that the Tribunal has appreciated these facts in the right

perspective by taking into consideration the nature of substantive

appointment which was made in favour of the appellant i.e., to the post of

PRT and he has never been appointed as TGT and merely because he was

allowed to discharge duty as TGT that does not confer any right to claim the

benefit attached to the post of TGT.

12. This Court after considering the finding recorded by the Tribunal and

by applying the principles for extending such benefit in favour of the

appellant as per the judicial pronouncements as referred hereinabove, is of

the view that the appellant has failed to make out a case for any interference

with the impugned order.

13. Accordingly, the instant appeal is failed and is hereby dismissed.

(Sujit Narayan Prasad, J.) Saket/-

N.A.F.R