Smt. Najma Pathan vs The State Of Madhya Pradesh
2023 Latest Caselaw 8353 MP

                                                                     1

IN           THE                 HIGH              COURT OF MADHYA PRADESH
                                                   AT JABALPUR
                                    BEFORE
                      HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                        ON THE 12TH OF JUNE, 2023
                                                W.P. No.18046 of 2016
BETWEEN:-
SMT. NAJMA PATHAN W/O MUSTKEEM PATHAN,
AGED ABOUT 46 YEARS, PRESENTLY WORKING AS
GOVT.    PRABHAWATI     MANEKAR    KANHAN
GYANPEETH,    HIGHER   SECONDARY   SCHOOL
SAUSAR, DISTRICT CHHINDWARA (M.P.)
                                                                                                                  ......PETITIONER
(BY SHRI PRABHAT KUMAR SHUKLA - ADVOCATE)

AND

1.                    THE STATE OF M.P., THROUGH ITS
                      SECRETARY,    SCHOOL   EDUCATION
                      DEPARTMENT,    VALLABH   BHAWAN,
                      BHOPAL (M.P.)
2.                    THE COMMISSIONER, DIRECTORATE OF
                      PUBLIC   INSTRUCTIONS,   GOUTAM
                      NAGAR, BHOPAL (M.P.)
3.                    THE DISTRICT EDUCATION OFFICER,
                      CHHINDWARA, DISTRICT CHHINDWARA
                      (M.P.)
                                                                                                            ......RESPONDENTS
(BY SHRI TAPAN BATHRE - PANEL LAWYER)
................................................................................................................................................
Reserved on                : 24.04.2023
Pronounced on : 12.06.2023
................................................................................................................................................
                        This petition having been heard and reserved for orders,
coming on for pronouncement this day, the Court pronounced the
following:
                                                                    ORDER

Pleadings are complete. With the consent of counsel for the

parties, the matter is finally heard.

2. By the instant petition filed under Article 226 of the Constitution of India, the petitioner is asking for following relief:

(i) The Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus directing to respondents to grant the salary to the petitioner as Upper Division Teacher.

(ii) The respondents may be directed to designate the petitioner as Upper Division Teacher.

(iii) That, the respondents may be directed to count the seniority of the petitioner from the date of his initially absorption.

(iv) The impugned order dated 17.07.2014 passed by respondent No.3 changing the designation and salary of the petitioner be quashed.

(v) Any other relief which this Hon'ble Court may deems fit and proper in favour of the petitioner may also be given, in the interest of justice.

3. As per the facts of the case, the petitioner was initially appointed as Assistant Teacher in a private school namely Prabhawati Manekar Kanhan Gyanpeeth, Higher Secondary School Sausar, District Chhindwara, vide order dated 18.06.1993 (Annexure-P/1). Thereafter, she was promoted to the post of Upper Division Teacher/UDT (mPp Js.kh f'kf{kdk) vide order dated 01.07.1998 (Annexure-P/2). Thereafter, the Government has taken a decision to take over the school and communication in this regard was made to the Commissioner Public

Instructions vide Annexure-P/3 dated 24/26.04.2000. Thereafter, vide order dated 20.10.2000 (Annexure-P/4) in pursuance to the letter dated 26.04.2000, the teachers including the present petitioner working in the said school have been absorbed in the school which is taken over by the State Government. The list of staff working in the school and have been absorbed contained in Annexure-P/4, in which, the name of the present petitioner finds place at serial No.10 and her designation is shown as Shiksha Karmi Grade-II. But the petitioner was not being considered to be a Shiksha Karmi Grade-II, which is equivalent to the post of Upper Division Teacher and was also not being paid wages accordingly. It was not only the petitioner, but there were other similarly situated persons though they have been absorbed in the State services, but not on the same status which they were holding prior to absorption and as such, several petitions were filed in the High Court. One of the petitions was W.P. No.6850 of 2000 (N.K. Rai and others Vs. State of M.P. and others). The said petition was decided vide order dated 28.01.2004 and that judgment has been reported in 2005 (5) M.P.H.T. 305, in which the writ Court has observed as under:-

"21. In my opinion, it is not open to the State to dictate whatever terms it want at the time of taking over the institution. It is bound by certain principles particularly when the posts existed in the school have been approved including the scales of pay for grant-in-aid, incumbents have held the post for last 20-25 years, were drawing the salary in regular pay scale. All of a sudden reduction could not have been ordered in arbitrary manner. Action is nothing but outcome of non-application of mind and non-consideration of the conditions on which schools can be taken over. Conditions of absorption cannot be illegal, unreasonable or arbitrary. It is surprising when the State was making the payment of grand-in-aid at the rates prescribed for regular posts at the relevant time and when it has approved the appointments as incumbents were qualified, posts are also there, it passes comprehension how it can order reduction of the salary

in the method and manner in which it has been done by executive fiat. State had deep and pervasive control even when the school was receiving grant-in-aid. Petitioners are duly qualified has not been disputed. Appointments were approved under Adhiniyam of 1978. Thus, action of absorption of Lecturers, UDT, LDT on posts of Shikshakarmi Grade-I, II and III is totally illegal. They ought to have been absorbed as Lecturers, UDTs (redesignated as "Teacher") and LDTs (redesignated as "Asstt. Teacher") in the regular pay scale prescribed, even for other posts of non-teaching staff pay ought to have been arrived at in accordance with clause (5) of memo (P/6)."

4. The petitioner is therefore, claimed that she may also be granted the same benefit treating her to be UDT, but the respondents passed the order dated 17.07.2014 (Annexure-P/7) rejecting her claim saying that the petitioner should be treated to be Assistant Teacher and she was entitled to get pay scale of Rs.4000-100-6000.

5. However, the petitioner was not satisfied with the same saying that the law laid down by the High Court in case of N.K. Rai (supra) was otherwise directing respondents to consider the teachers on the post on which they were working and Shiksha Karmi Grade-II was considered to be equal post of UDT.

6. After the decision in case of N.K. Rai (supra), the State preferred an appeal against the said order. The appeal of the State was rejected by the Division Bench of this Court and thereafter the SLP preferred before the Supreme Court was also dismissed and as such, the order passed by the writ Court in case of N.K. Rai (supra) has attained finality.

7. The petitioner has also placed reliance upon an order passed in W.P. No.5922/2015 (D.P. Rakesiya Vs. State of M.P. and others), in which the High Court relying upon the case of N.K. Rai (supra) allowed the petition directing that the petitioner therein be treated to be

absorbed on the post which was held by him before absorption. The petitioner is, therefore, claiming that her case be also considered in the light of law laid down in case of N.K. Rai (supra) and order passed by the authority treating the petitioner to be Assistant Teacher be set aside.

8. Reply has been filed by the respondents/State saying that in an identical petition i.e. W.P. No.19036 of 2016 they have filed a detailed reply and the same is being adopted in the present petition.

9. As per the stand taken by the respondents, it is specified that the petitioner did not have requisite qualification for the post of UDT as prescribed under the Madhya Pradesh Non-Gazetted Class III Education Service (Non-Collegiate Services) Recruitment and Promotion Rules, 1973. According to the State, the qualification for the post of UDT prescribed in the rules is Graduate or equivalent Degree in Second Division, but the petitioner did not possess the same as she secured only Bachelors Degree with Third Division.

10. Considering the submissions made by the counsel for the parties and on perusal of record, I am not satisfied with the submission made by the counsel for the respondents and also the stand taken by them in their reply for the reason that the order of absorption is Annexure-P/4 in which the petitioner is shown to be a Shiksha Karmi Grade-II. The High Court in the case of N.K. Rai (supra), has observed that Shiksha Karmi Grade-I, II and III should be treated to be Lecturers, UDTs and LDTs respectively and their absorption should be made accordingly. The petitioner was holding the post of Shiksha Karmi Grade-II, therefore, her absorption should be made as UDT and she should be designated as such, and also entitled to get the benefit of the post of UDT. The High Court in Writ Petition No.5922/2015 placing

reliance upon the case of N.K. Rai (supra) has also granted the benefit saying that the employee should be absorbed on the post which was held by him/her before absorption. From Annexure-P/4 it is clear that the petitioner was treated to be Shiksha Karmi Grade-II as before absorption she was holding the post of UDT and, as such, this petition is disposed of directing the respondents that the benefit of the post of UDT be also granted to the petitioner from the date of absorption. The pay scale of said post be also provided to the petitioner. Arrears be calculated accordingly and same be paid to her within a period of four months from the date of submitting a copy of this order. It is made clear that if the arrears is not paid within four months period, the same will carry interest at the rate of 6% on delayed payment till the date actual payment is made to the petitioner after expiry of that period.

11. With the aforesaid observations, this petition is disposed of.

(SANJAY DWIVEDI) JUDGE ac/-

ANIL CHOUDHARY 2023.06.14 10:58:55 +05'30'