Punjab-Haryana High Court
Ravinder Pal Malhotra vs Union Of India & Ors on 16 April, 2024
Neutral Citation No:=2024:PHHC:057494
CWP-24319-2016 (O&M) 1 2024:PHHC:057494
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No. 24319 of 2016 (O&M)
Date on Reserved : 09.04.2024
Date of Pronouncement : 16.04.2024
Ravinder Pal Malhotra (since deceased) through his LRs
..... Petitioner
Versus
Union of India and others ..... Respondents
CWP No. 2864 of 2012
R.K.Thakur and others ..... Petitioners
Versus
Under Secretary and others ..... Respondents
CORAM: HON'BLE MR. JUSTICE JAGMOHAN BANSAL
Present: Mr. P.K.Goklaney, Advocate and
Mr. Ashish Goklaney, Advocate
for the petitioners in CWP No. 2864 of 2012.
Mr. Aalok Jagga, Advocate
for the petitioner in CWP No. 24319 of 2016.
Mr. Amit Jhanji, Senior Standing Counsel and
Ms. Sukhmani Patwalia, Advocate
for the U.T.Chandigarh.
Mr. R.S.Cheema, Advocate
for respondent No.4 in CWP-2864-2012.
****
JAGMOHAN BANSAL
1. By this order, CWP No. 24319 of 2016 and CWP-2864-2012 are
disposed of as the issues involved and prayer sought are common. For the sake of
convenience, the facts are borrowed from CWP No. 24319 of 2016.
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2. The petitioner through instant petition under Articles 226/227 of
Constitution of India is seeking setting aside of order dated 06.09.2017 (Annexure
P-19) whereby respondent has rejected his claim qua Assured Career Progression
Scheme (for short 'ACP'). The petitioner is further seeking direction to the
respondents to extend benefits flowing from ACP as are available to teachers of
Government Schools of Chandigarh Administration.
3. The petitioner is a school teacher and working with respondent No.4
i.e. DAV Senior Secondary School, Sector 8-C, Chandigarh which is a privately
managed school and getting 95% grant in aid from Chandigarh Administration.
The petitioner joined respondent-School in August' 1992 on adhoc basis and
thereafter, in August' 1994, was made regular as Trained Graduate Teacher
(Maths). The petitioner during his tenure taught mathematics to students of 10th
and 12th standards.
4. The Secretary, Department of Education, Chandigarh addressed a
letter dated 23.05.1989 to Director, Public Instructions (Schools), Chandigarh
stating that pay scales of teaching staff of Government aided schools in
Chandigarh shall be at par with teachers of Government schools in Chandigarh and
on the same terms and conditions as laid down in Finance Department letter dated
08.02.1989. The respondents awarded senior scale to officials of privately
managed government aided school on completion of 12 years of service. In
January' 1997, the respondent granted proficiency step up on completion of 8/18
years of regular service.
5. The Secretary, Department of Education (respondent No.2) vide letter
dated 08.06.1998 (Annexure P-6) addressed to Director, Public Instructions
(respondent No.3) stated that Chandigarh Administration is pleased to adopt
revised pay scales w.e.f. 01.01.1996 on the pattern of Punjab in respect of teaching
and non-teaching employees of Govt. Aided Schools on the same terms as are
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applicable to their counterparts working in Govt. Schools and Colleges subject to
the condition that duties, functions and educational qualification of these officials
are exactly similar to those of corresponding category of employees. The relevant
extracts of communication dated 08.06.1998 are reproduced as below :
Subject: Revision of Pay Scale of Teaching/Non-Teaching
employees of Aided Schools and non-Teaching
employees of Aided Colleges on Punjab pattern.
The Administrator, U.T., Chandigarh is pleased to
adopt the revised pay scales w.e.f. 01.01.1996 on Punjab
pattern in favour of teaching & Non-Teaching employees of
Govt. Aided Schools and Non-Teaching employees of Govt.
Aided Colleges as per letter No. F & PO (7) 98/1156 dated 3rd
February, 1998 (copy enclosed) on the same terms as are
applicable to their counterparts working in Govt. Schools and
Colleges, subject to the condition that the duties, functions and
educational qualification of teaching & non-teaching
employees working in these organizations are exactly similar to
those of corresponding category of employees of Govt. Schools
and Colleges.
This issues with the prior concurrence of Finance
Department, Chandigarh, Administration conveyed vide their
U.O No.501- F&PO (7)6897 dated 19.05.1998.
6. The Director, Education Department(s), Punjab vide communication
dated 01.10.2001 (Annexure P-7) addressed to Director, Education Department,
Chandigarh Administration, intimated that State of Punjab has neither granted
proficiency step up to teaching and non-teaching staff of the privately managed
recognized and aided schools prior to 1996 nor any benefit of revised pay scales
has been granted post January' 1996. The relevant extracts of the letter dated
01.10.2001 are reproduced as below :
Subject : For granting promotion to Senior Scale and one
increment under A.C.P
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In context to the above subject, in context to your
memo No 579-D.P.1 - U.T. A-4-24 (58) 93 dated 28-8-2001, it
is requested that in State of Punjab, no proficiency step-up has
been granted to Teaching and Non Teaching Staff of the
Privately Managed Recognized and Aided Schools, prior to 1-
1-96, neither any benefit of revised pay scales after 1-1-96 has
been granted.
7. On 17.12.1998 (Annexure P-8), the Chandigarh Administration
implemented recommendations of 4th Punjab Pay Commission under Assured
Career Progression Scheme. It was decided that recommendations of 4th Punjab
Pay Commission with respect to ACP are adopted from the date specified by
Punjab Government in respect of employees of Union Territory, Chandigarh
governed by the Punjab Civil Services (Revised Pay) Rules, 1998. The relevant
extracts of communication dated 17.12.1998 are reproduced as below:
Subject: Implementation of the recommendations of the Fourth
Punjab Pay Commission under 'Assured Career
Progression Scheme'.
Sir/Madam,
I am directed to say that the Punjab Government
on the recommendations of Fourth Punjab Pay Commission
with regard to 'Assured Career Progression Scheme' has
notified the 'Assured Career Progression Scheme' as contained
in their letter No.7/37/98-5PPI/12851-54 dated 25th
September, 1998 (copy enclosed) which is effective from Ist
January, 1996, which inter-alia provide for the grant of next
higher pay scale in the hierarchy of pay scales and proficiency
steps up to the employees governed by the Punjab Civil
Services (Revised Pay) Rules, 1998.
2. In pursuance of the Government of India, Ministry
of Home Affairs Notification No.14012/2/88-CHD dated
13.01.1992, the Administrator, Union Territory, Chandigarh is
pleased to adopt the aforesaid Punjab Government's circular
letter No.7/37/98-5PPI/12851-54 dated 25th September, 1998
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from the date specified by the Punjab Government in respect of
the employees of the Union Territory, Chandigarh governed by
the Punjab Civil Services (Revised Pay) Rules, 1998 adopted by
Chandigarh Administration, Finance Department (Accounts
Branch) vide letter No.F & PO (7)-98/1156-1160-A dated the
3rd February, 1998 and drawing Punjab pay scales w.e.f.
01.01.1996.
8. The State of Punjab w.e.f. 01.01.2006 granted ACP on completion of
4, 9 and 14 years of service. The respondent vide communication dated 04.02.2011
(Annexure P-10) decided to grant pay and allowances on Punjab pattern as per
recommendations of 5th Punjab Pay Commission to the Teaching and non-teaching
staff of Privately Managed Government Aided Schools. In the said
communication, letters dated 18.08.1989 and 15.03.1993 whereby it was decided
to grant parity in release of Punjab Pay scales to the teaching and non-teaching
staff of privately managed government aided schools, was noticed. The relevant
extracts of the communication dated 04.02.2011 are reproduced as below:
Subject: Grant of Pay and allowances on Punjab pattern as
per recommendations of Fifth Punjab Pay
Commission to the Teaching and non Teaching
staff of Privately Managed Governments Aided
Schools and Non- Teaching employers of Aided
Colleges on the basis of parity with counterparts
working Chandigarh In Govt. Colleges, UT,
Chandigarh.
I am directed to refer your office letter no. F.No.
2-4/2010-UT-1 dated 30th December 2010 on the subject cited
above. Point-wise reply of the information asked vide above
referred later is as under :
1. The proposed replacement scales have been
implemented in the Education Department, U. T.
Chandigarh the employees working in the govt.
Schools and Colleges.
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2. The Punjab got has extended the benefit of revision
of pay scales to the non-teaching staff working in
Privately Managed Aided Colleges of their State
w.e.f. 1.6.2010 basis of 5th pay commission report
(copy enclosed)
3. If Chandigarh is allowed to extend the benefits of
fifth Punjab Pay Commission it will not create
further anomalies vis-a-vis employees of Privately
Managed Govt. Aided Schools in Punjab, as the
Chandigarh Administration follows Punjab Pay
Scales and Punjab does not follow Chandigarh
Administration.
Copies of letters dated 18.8.1989 and 15.3.1993
where earlier a decision has already been taken to grant parity
in release of Punjab Pay scales to the teaching and Non-
teaching staff of privately managed aided schools on the same
terms and conditions as in the case of their counterparts is
Govt. schools of U.T. Chandigarh are sent herewith. Further,
copy of letter No. 7000/12-F&PO(7)- 2009-4029 dated
11.6.2009 whereby pay scales of teaching and Non-leaching
staff of Govt. Schools/Colleges according to whom they are
gelling revised Punjab Pay Scales w.e.f. 1.1.2006 is also sent
herewith.
You are therefore requested to take further
necessary action to the grant of benefit of pay scales w.e.f.
1.1.2006.
9. The Director Public Instruction, Chandigarh Administration vide
communication dated 02.01.2004 (Annexure P-11), returned proposal of extension
of ACP to employees of Government Aided Privately Managed Schools. The
contents of said letter are reproduced as below :
The cases for the approval of ACP in respect of teaching and
non-teaching staff of DAV Sr. Sec. School, Sector 8,
Chandigarh is returned herewith with the remarks that ACP
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Scheme is not applicable to the employees of Govt. Aided
Privately Managed Schools.
10. The Education Secretary addressed a letter dated 16.07.2010
(Annexure P-13) to Under Secretary to Govt. of India, Ministry of HRD wherein it
was observed that teachers working in grant-in-aid schools of U.T. Administration
should be extended benefit of ACP as is available to Govt. school teachers as well
as non-teaching staff. In the said letter, it was also noticed that Government of
Punjab has not allowed ACP to employees of Privately Managed Schools, thus,
Finance Department has formed an opinion that ACP should not be made
applicable to privately managed Schools in U.T. Chandigarh. The Secretary was of
the opinion that to bring parity with Govt. staff of U.T. Administration benefit of
ACP should be extended to Privately Managed Schools. The relevant contents of
said letter are reproduced as below:
It is stated that the teachers working in grant-in-
aid schools of U.T. Chandigarh are getting the same pay scales
at par with teachers working in Govt. Schools of Education
Department, U.T., Chandigarh on Punjab pattern. The benefit
of ACP Scheme is being availed by the Chandigarh
Administration, Education Department Govt. Schools Teaching
as well as Non-teaching staff. However, the benefit of ACP has
not been extended to the staff working in Govt. Privately
Managed Aided Schools in Punjab. As per instructions issued
by Ministry of Human Resource Development letter No.F.3-
25/88 UT-1, dated 22.9.87 it has been clarified that "the pay
scales applicable to school teachers of the categories
mentioned in this letter to the incumbents of such teaching
posts are analogous to the above mentioned categories of
posts of teachers working in the schools in UT Chandigarh
included Govt. Aided Schools."
Further, the Finance Deptt. U.T., Chandigarh has
clarified vide letter NO.423-DPI-UT-A2-24(27)88, dated 5.5.93
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that Punjab Pay Scale and other facilities i.e. DA, HRA, CCA
and fixed medical allowances as allowed by the Govt. of India,
Ministry of Human Resource Development vide their letter
No.F.2/16/92/UT.1, dated 15.3.93 in favour teaching and non-
teaching employees working in Privately Managed Govt. Aided
Schools in UT Chandigarh w.e.f. 1.1.86 on the same terms and
conditions as has been done in the case of their counter parts in
Govt. Schools of U.T. Administration. Now it has been advised
by the Finance Department that as the Government of Punjab
has not allowed the ACP to the employees of the Privately
Managed Schools and Colleges, as such, the benefit can not be
allowed to the employees working in the Privately
Managed/Govt. Aided Schools and Colleges in U.T.
Chandigarh. However, in case AD still wants to grant this
benefit, in that case, the issue can be taken up by the AD with
the Government of India first.
Keeping in view the position explained above, it is
considered appropriate to bring parity with Govt. staff of UT.
Education Department the request of Union of Govt. Grant-in-
Aid Privately Managed Schools Teacher to grant/extend benefit
of ACP on completion of 8, 16, 24 & 32 years and subsequently
switched over 4/9/14 years of service w.e.f. 1.11.2006 to the
employees working in Privately Managed Govt. Aided Schools
& Colleges in U.T., Chandigarh on similar pattern, as is being
enjoyed by the UT Govt. School Teaching and Non-Teaching
Staff in order to redress the grievances of Union for all times to
come as per decision contained in letter dated 15.3.93.
11. The Director, Public Instruction(s), Chandigarh vide communication
dated 16.08.2010 (Annexure P-14) requested to Govt. of India to consider the
proposal of grant of ACP w.e.f. 1.11.2006 (sic.) to employees working in Privately
Managed Govt. Aided Schools. The relevant extracts of the said letter are
reproduced as below:
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Subject : Assured Career Progression Scheme (8, 16, 24 &
32 years of service)
Sir,
I am directed to refer to this office letter No.452-
DPI-UT-A4- 24(58)93/1185 dated 16.7.2010 vide which it was
requested to consider the proposal for the grant of benefit
under Assured Career Progression Scheme on completion of
4/9/14 years of service w.e.f. 1.11.2006 to the employees
working in Privately Managed Govt. Aided Schools and
Colleges in UT. Chandigarh, on the pattern of similarly
situated Govt. employees of the Education Department.
It is again requested to expedite the matter as
early as possible.
12. The Ministry of HRD, Department of School Education and Literacy
vide communication dated 14.09.2011 (Annexure P-15) intimated the Finance
Secretary, Chandigarh Administration that teaching and non-teaching employees of
Government aided schools of UT Administration may be extended Punjab pay
scales of Chandigarh w.e.f. January 01, 2006 and on the same terms and conditions
as are applicable their counterparts in the Government schools of UT
Administration. The relevant extracts of the said communication are reproduced as
below :
Subject: Release of Punjab pay scales to the Teaching and
Non- teaching employees working in the Govt.
Aided-privately managed schools in the U.T.
Administration of Chandigarh- approval thereto.
Sir,
I am directed to refer to your letter No.DHE-UT-
AD.III-24 (14) 95-96, dated 16 November, 2010 on the subject
cited above and to convey the approval of the Government of
India to the extension of Punjab pay scales to the teaching and
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non-teaching employees of Government aided privately
managed schools under the UT Administration of Chandigarh
w.e.f. January 01, 2006 on the same terms and conditions as
has been done in the case of their counter-parts in the
Government schools of UT Administration subject to the
following conditions:-
(i) The duties, functions and educational
qualifications of the teaching and non-
teaching employees working in privately
managed aided schools are exactly similar
to those of the corresponding-employees of
the Government schools, and
(ii) The expenditure involved will be met by the
UT Administration from within its
sanctioned budget.
2. This issues with the approval of the Integrated
Finance Division of this Ministry vide their Dy.No.3693 dated
07 September, 2011.
13. The Education Department, Chandigarh Administration vide letter
dated 25.10.2011 (Annexure P-16) decided to adopt revised pay scales in favour of
Teaching and Non-Teaching employees of Privately Managed Government Aided
Schools w.e.f. 1.1.2006 on the pattern of Punjab Govt. The contents of said letter
are reproduced as below :
The Administrator, U.T., Chandigarh is pleased to
adopt the revised pay scales in favour of Teaching and Non-
Teaching employees of Privately Managed Govt. Aided Schools
of U.T. Chandigarh w.e.f. 1.1.2006 on Punjab pattern in
pursuance of the Punjab Govt. letter No.4/62/10-4S13/1867
dated 6.6.2011 subject to the condition that the decision about
the arrears prior to 1.4.2011 will be taken as and when Punjab
Govt. takes decision.
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This is further subject to the condition that the
duties, functions and educational qualification of teaching and
non-teaching employees working in these organizations are
exactly similar to those of corresponding category of employees
of Govt. Schools.
This issues with the concurrence of Finance
Department. Chandigarh, Administration conveyed vide their
U.O.No. 7000/1/116/F & PO (7)/9139 dated 25.10.2011.
14. The respondent as narrated hereinabove adopted revised pay scales for
teaching and non-teaching staff of Govt. aided schools on the pattern of State of
Punjab. The respondent extended pay scale to teaching and non-teaching staff of
privately managed schools on the pattern of Punjab. In the State of Punjab,
employees of privately managed government aided schools are not getting benefit
of ACP, thus, respondent formed an opinion that employees working in Govt.
Aided schools are not entitled to benefit of ACP.
15. During the pendency of present petition, this Court vide order dated
25.07.2017 directed the respondents to pass a speaking order with reference to
representation dated 10.08.2009 of the petitioner. The respondent vide impugned
order dated 06.09.2017 (Annexure P-19) has rejected his claim. The respondent
has formed an opinion that employees of Govt. aided schools are not getting ACP
in the State of Punjab, thus, employees of Govt. aided school in U. T. Chandigarh
are not entitled to said benefit. The relevant extracts of the said order are
reproduced as below :
5. The matter was also considered by the
Administration and referred to the Finance Department. It was
observed by the Finance Department that as the Government of
Punjab has not allowed the ACP to the employees of the
Privately Managed Schools and Colleges, as such the benefit
cannot be allowed to the employees working in the Privately
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Managed Govt. Aided Schools and Colleges in UT. However, in
case the Education Department still wants to grant this benefit,
in that case, the issue can be taken up with the Government of
India.
6. The matter was taken-up with the Ministry of
Human Resource Development, New Delhi seeking their
approval. The Under Secretary to the Government of India vide
letter dated 20th August, 2014 informed that the UT
Administration of Chandigarh is following the pay pattern of
the State Government of Punjab. The State Government of
Punjab has not granted the benefit of ACP to the teaching and
non-teaching staff in Govt. Aided Schools and requested to take
up the matter with the Government of Punjab.
7. The Director Public Instruction(S), Punjab vide
letter dated 20.7.2015 and 7.11.2016 again reiterated the reply
as conveyed vide letter dated 11.5.2015.
8. The Director Public Instruction(S), Punjab, SAS
Nagar Mohali has again been requested to intimate the latest
status about the admissibility of ACP benefit to the employees
of aided schools in the State of Punjab vide letter dated
3.8.2017 which is awaited.
9. In a similar nature of Civil Writ Petition bearing
No 2064/2012 titled as R.K. Thakur and others versus Union of
India and others, the Department has already filed written
statement and Affidavit thereby contesting the claim of the
petitioner for grant of benefit under ACP Scheme.
10. On consideration of the Legal Notice given by the
Petitioner and clarification given by DPI(S), Punjab vide letter
dated 11.5.2015, advice given by Finance Department,
Chandigarh Administration vide U.O No.7000/1/116-
F&PO(7)/9068 dated 31.12.2009 and clarification given by
Ministry of Human Resource Development, Govt. of India, New
Delhi vide letter dated 20.8.2014 and 8.2.2016, the undersigned
has found as such that the benefit of ACP is not admissible to
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the petitioner at par with the employees working in the Govt.
Schools of U.T. Chandigarh.
[Emphasis Supplied]
16. Mr. Aalok Jagga and Mr. P.K.Goklaney, Advocates submit that prior
to 2006, the respondent extended benefit of proficiency step up to employees of
Govt. aided schools of Chandigarh, however, has declined benefit of ACP w.e.f.
01.01.2006 on the ground that employees of Govt. aided schools in State of Punjab
are not getting ACP, thus, the petitioners are not eligible to said benefit. The
respondent has adopted pay pattern of State of Punjab, however, in different
communications, it has been categorically stated that employees of Govt. aided
schools would be eligible to benefits as are available to their counterparts in U. T.
Chandigarh. The employees of U.T. Chandigarh are getting ACP and the
petitioners' counterparts are teachers of Govt. schools at U.T. Chandigarh. The
petitioners cannot be compared with employees of Govt. aided schools of State of
Punjab whereas petitioners should be treated at par with employees working in the
Govt. schools of U.T. Chandigarh. The Govt. of India, Ministry of Home Affairs,
has issued a notification dated 23.05.2018 whereby Punjab Privately Managed
Recognised Schools Employees (Security of Service) Act, 1979 (for short '1979
Act') and the Punjab Privately Managed Recognised Schools Employees (Security
of Service) Amendment Act, 2013 (Punjab Act No.48 of 2013) (for short '2013
Act') have been extended to U. T. Chandigarh. In the said notification, it has been
made clear that words 'State Government' shall be substituted by 'Administrator of
the Union territory of Chandigarh' and 'State of Punjab' by 'Union Territory of
Chandigarh'. The 1979 Act categorically provides that pay scale and dearness
allowance of employees of Govt. aided schools shall not be less than of employees
of State Government holding corresponding posts in the schools run by the State
Government.
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The expression "pay scale" includes ACP. A two-judge Bench of
Supreme Court in Union of India and Ors. vs. Balbir Singh Turn & Anr., Civil
Appeal Diary No.3744 of 2016 , decided on 08.12.2017 has categorically held that
MACP is part of pay structure. The Court has further held that ACP is not an
allowance but part of pay.
17. Per contra, Mr. Amit Jhanji, Senior Standing Counsel and Mr. R.S.
Cheema, Advocate submit that U. T. Administration has adopted pay pattern of
State of Punjab. There is no cavil that employees of privately managed schools of
State of Punjab are not getting ACP. The petitioners are at par with employees of
Govt. aided schools in State of Punjab. They cannot claim parity with Government
employees of U. T. Chandigarh. The employees of Govt. aided schools form a
different class and they cannot be treated at par with Govt. employees. There is no
discrimination if petitioners are denied benefits of ACP though it is extended to
employees of Govt. schools. With respect to notification dated 23.05.2018 issued
by Ministry of Home Affairs they feigned ignorance. To counter judgment cited by
petitioner, they relied upon judgment of Supreme Court in Union of India vs.
R.K.Sharma and others, (2021) 5 SCC 579 and judgment of this court in Haryana
State Adhyapak Sangh vs. State of Haryana and Others, CWP No. 11686 of
2004.
18. I have heard the arguments of learned counsel for the parties and
perused the record.
19. From the perusal of pleadings and arguments, it comes out that the
petitioners are claiming that they are entitled to benefits of ACP at par with
employees working with Govt. schools of Chandigarh Administration whereas
respondent- Chandigarh Administration has rejected their claim on the ground that
employees working in the government aided schools of State of Punjab are not
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getting ACP at par with Punjab Govt. employees, therefore, the petitioners are not
entitled to benefits of ACP at par with employees of U.T. Administration. Thus,
the question which arises for the consideration of this court is: Whether petitioners
who are working with Privately Managed Government Aided Schools of
Chandigarh are entitled to ACP at par with employees of government schools of
Chandigarh Administration?
20. The conceded position emerging from record is that the petitioners are
working with privately managed government aided schools. They were extended
benefits of ACP and proficiency step up prior to 1996 at par with government
school teachers. The respondent time to time issued letters confirming that
employees of government aided schools are entitled to pay scale on the pattern of
Punjab State. It was further confirmed that they are entitled to benefits at par with
their counterparts. The administration requested Government of India to extend
ACP w.e.f. 01.01.1996 to petitioners at par with government schools of U.T.
Administration. The State of Punjab has not extended ACP to employees of its
government aided schools. The Ministry of Home Affairs vide Notification dated
23.05.2018 made 1979 Act and 2013 Act applicable to employees of government
aided schools of U.T. Chandigarh. The words 'State of Punjab' and 'State
Government' used in 1979 Act have been substituted by 'Union Territory of
Chandigarh' and 'The Administrator of Union Territory of Chandigarh'. The
petitioners are claiming parity with employees of government schools of
Chandigarh Administration and respondent is treating them at par with employees
of government aided schools of the State of Punjab.
21. From the perusal of letter dated 04.09.2011 issued by Ministry of
HRD as well as letter dated 25.10.2011 issued by Chandigarh Administration, it
comes out that Chandigarh Administration as well as Govt. of India has extended
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Punjab scales to the employees of Govt. Aided Privately Managed Schools of U. T.
Administration. The Govt. of India as well as Administration has further formed
an opinion that aforesaid employees would be entitled to benefits at par with their
counterparts i.e. employees of Govt. schools of U.T. Chandigarh. The respondent
is not disputing that employees of U.T. Administration are getting ACP. The
respondent is claiming that petitioners being employees of Govt. aided schools are
at par with employees of Govt. aided schools in the State of Punjab. As per
respondent, employees of Govt. aided schools of the State of Punjab are
petitioners' counterparts and not employees of Govt. schools of U.T. Chandigarh.
The contention of respondent seems to be misconceived, thus, deserves to be
rejected. The petitioners have successfully pointed out that U.T. Administration
itself vide communication dated 16.07.2010 requested to Govt. of India to extend
ACP to employees of Govt. aided schools at par with employees of Govt. schools
of U.T. Administration. The stand of respondent is apparently self-contradictory.
The respondent has further ignored the fact that even prior to 01.01.2006, the
employees of Govt. aided schools in Chandigarh were extended proficiency step
up at par with employees of govt. schools of Chandigarh Administration. The
State of Punjab has not extended said benefit to employees working in Govt. aided
schools.
22. The respondent has primarily recorded finding in the impugned order
as well as pleaded during the course of arguments that petitioners are at par with
employees working in Govt. aided schools in the State of Punjab. The respondent
is treating employees of Govt. aided school in the State of Punjab as petitioners'
counterpart.
23. From the perusal of letter dated 04.09.2011 of Govt. of India and letter dated
25.10.2011 of Chandigarh Administration, it is evident that respondent itself has
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treated employees of Govt. schools of U.T. Administration as counterparts of
petitioners. The respondent just to avoid its liability is taking somersault. The
argument of respondent further falls flat in view of notification dated 23.05.2018
issued by Ministry of Home Affairs. The said notification is reproduced as below :
New Delhi, the 23rd May, 2018
G.S.R. 474(E)-In exercise of the powers conferred by
section 87 of the Punjab Reorganisation Act, 1966 (31 of 1966)
and in suppression of the notification of the Government of
India in the Ministry of Home Affairs number G. S. R. 1221,
dated the 27th August, 1971, published in the Gazette of India,
Part II, section 3, sub-section (i) except as respects things done
or omitted to be done before such suppression, the Central
Government hereby extends to the Union territory of
Chandigarh, the Punjab Privately Managed Recognised
Schools Employees (Security of Service) Act 1979 (Punjab Act
No. 18 of 1979) and the Punjab Privately Managed Recognised
Schools Employees (Security of Service) Amendment Act, 2013
(Punjab Act No.48 of 2013), as in force in the State of Punjab,
on the date of publication of this Notification, subject to the
following modifications, namely:-
MODIFICATIONS
THE PUNJAB PRIVATELY MANAGED RECOGNISED
SCHOOLS EMPLOYEES (SECURITY OF SERVICE) ACT,
(PUNJAB ACT 18 OF 1979)
1. Throughout the Punjab Privately Managed
Recognised Schools Employers (Security of
Service) Act. 1979 (Punjab Act 18 of 1979)
hereinafter referred to as the Act, for the words
"State Government" wherever they occur, the
words "the Administrator of the Union territory
of Chandigarh" shall be substituted.
2. In section I of the said Act,
(a) in sub-section (1), after the words "the
Punjab Privately Managed Recognised
Schools Employees (Security of Service)
Act, 1979", the words "as extended to the
Union territory of Chandigarh" shall be
inserted;
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(b) In sub-section (2), for the words "State of
Punjab", the words "Union Territory of
Chandigarh" shall be substituted.
24. From the perusal of above-quoted notification and modified 1979 Act,
it can be culled out that 1979 Act as well as 2013 Act has been extended to
employees working with Privately Managed Govt. Aided Schools of U.T.
Chandigarh. It has been categorically provided that word 'State Government'
wherever occurred would be substituted by 'the Administrator of the Union
territory of Chandigarh'. The expression 'State of Punjab' has been substituted by
'Union Territory of Chandigarh'. Section 7 of 1979 Act provides that pay scale and
dearness allowance of the employees of privately managed schools shall not be
less than of employees of U.T. Administration. The expression 'privately managed
recognized school' has been defined under Section 2(g) of the Act and Section 7
provides for pay parity. Section 2(g) and Section 7 of the Act are reproduced as
below :
(g) 'privately managed recognized school' means a school,
which is not run by the Central Government, the State
Government, a local authority or any other authority
designated or sponsored by the Central Government. State
Government or local authority, as the case may be, and is
recognized by the State Government for imparting pre-primary,
primary, middle, high and higher secondary education or
training below the degree level, but does not include an
institution which imparts technical education,
X X X X X
Section 7:
Notwithstanding anything contained in section 3, the scale of
pay and dearness allowance of the employees shall not be less
than those of the employees of the State Government holding
corresponding posts in the schools run by the State
Government:
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Provided that where the scales of pay and dearness allowance
of the employees are less than those of the employees of the
State Government holding corresponding posts in the schools
run by the State Government, the Director shall direct the
concerned managing committee to bring the same at par with
those of such employees of the State Government.
25. The notification dated 23.05.2018 has substituted word "State
Government" by "the Administrator of the Union territory of Chandigarh". The
natural corollary is that employees of privately managed schools of Chandigarh are
at par with employees of schools of Chandigarh Administration. The counterparts
of petitioners are not employees of privately managed schools in the State of
Punjab whereas their counterparts are employees of Govt. schools of Chandigarh
Administration.
26. From the above discussion, it comes out that notification dated
23.05.2018 has cleared the clouds. There is no scope for doubt. For the purpose of
pay scale and dearness allowance, the employees of privately managed schools are
at par with employees of Chandigarh Administration. The respondent has rejected
claim of the petitioner on the sole ground that employees of privately managed
schools of State of Punjab are counterparts of the petitioners whereas the above
discussion makes it clear that employees of Chandigarh Administration are their
counterparts.
27. The petitioners have been denied benefit of ACP on the sole ground
that employees of privately managed schools of State of Punjab are not getting
ACP. The respondent has not denied benefit on the ground that pay scale does not
include ACP. The object of extending pay scale and dearness allowance to
Privately Managed Govt. Aided School as available to Govt. teachers is to bring
parity among both classes of employees. The Govt. has introduced 1979 Act to
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obliterate disparity in the pay scale of Privately Managed Govt. Aided Schools and
Govt. Schools. It is apt to mention here that Govt. aided schools are getting 95%
grant-in-aid from Administration. The appointment of teachers in these schools is
made as per parameters as well as terms and conditions laid down by
Administration. The respondent during the course of arguments pleaded that
petitioners may be entitled to pay scale and dearness allowance as available to
Govt. teachers, however, ACP cannot be treated as part of the pay scale. The
respondent has not raised this ground in the impugned speaking order. It is a
settled proposition of law that authorities cannot be permitted to travel beyond the
impugned order, nevertheless, I deem it appropriate to look at judicial precedents
adverting with the nature of ACP.
As pleaded by petitioners, a two-judge Bench of Supreme Court in
Balbir Singh Turn's case (supra) while adverting with decision of Armed Forces
Tribunal has held that benefit of ACP granted to an employee is part of pay
structure which not only affects grade pay but also his pension, therefore, it is not
an allowance but a part of pay. In this case, Armed Forces Tribunal held that
MACP is part of pay structure and employees despite decision of Govt. to extend
MACP w.e.f. 01.09.2008 would be entitled to said benefit w.e.f. 01.01.2006 i.e.
date from which recommendations of the 6th pay commission with regard to pay
and benefits were made applicable. The relevant extracts of the said judgment read
as :
5. For the purpose of this judgment we are dealing with the
facts of Civil Appeal Diary No. 3744 of 2016. It would be
pertinent to mention that all the petitioners before the Armed
Forces Tribunal ('AFT' for short) who are respondents before
us are persons below officer rank. The respondents in this case
retired after 01.01.2006 but prior to 31.08.2008. They claim
that the benefit of the Modified Assured Career Progression
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('MACP' for short) was denied to them on the ground that the
MACP was made applicable only with effect from 01.09.2008.
The respondents approached the AFT praying that they are
entitled to the benefit of MACP w.e.f. 01.01.2006, i.e., the date
from which the recommendation of the 6th CPC with regard to
pay and benefits were made applicable. The stand of the Union
of India was that the MACP was applicable only w.e.f.
01.09.2008 and, therefore, the respondents who had retired
prior to the said date were not entitled to the benefit of the
MACP. The AFT vide the impugned order dated 21.05.2014
held that the benefit of ACP granted to an employee is part of
the pay structure which not only affects his pay but also his
pension and, therefore, held that the ACP is not an allowance
but a part of pay and, therefore, in terms of Clause (i) of the
Government Resolution the MACP was payable w.e.f.
01.01.2006.
6. The question that arises for decision is whether the
benefit of MACP is applicable from 01.01.2006 or from
01.09.2008. 7. The answer to this question will lie in the
interpretation given to the Government Resolution, relevant
portion of which has been quoted hereinabove. A bare perusal
of Clause (i) of the Resolution clearly indicates that the Central
Government decided to implement the revised pay structure of
pay bands and grade pay, as well as pension with effect from
01.01.2006. The second part of the Clause lays down that all
allowances except the Dearness Allowance/relief will be
effective from 01.09.2008. The AFT held, and in our opinion
rightly so, that the benefit of MACP is part of the pay structure
and will affect the grade pay of the employees and, therefore, it
cannot be said that it is a part of allowances. The benefit of
MACP if given to the respondents would affect their pension
also.
X X X X X
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10. As already held by us above, there can be no dispute that
grant of ACP is part of the pay structure. It affects the pay of
the employee and he gets a higher grade pay even though it
may be in the same pay band.
28. The respondent to counter aforesaid judgment has relied upon a two-
judge Bench judgment of Supreme Court in R.K.Sharma (supra). Supreme Court
in this judgment has noticed its earlier judgment in Balbir Singh Turn's case
(supra), however, neither has declared per incuriam nor disturbed its findings. The
Court has observed that benefits flowing from MACP and ACP are incentives and
not part of pay. The relevant extracts of R.K.Sharma's case (supra) read as :
9. For a better understanding of the dispute in these cases,
it is necessary to examine the judgments of this Court in Balbir
Singh Turn (supra) and M.V. Mohanan Nair (supra). The point
that was considered by this Court in Balbir Singh Turn (supra)
relates to the applicability of the benefit of MACPS from
01.01.2006. The Respondents therein approached the Armed
Forces Tribunal which held that the benefit of ACP granted to
an employee is part of the pay structure which affects the pay
and also his pension. The Armed Forces Tribunal held that an
ACP is not an allowance but a part of pay and therefore, in
terms of the Government resolution, the employees were
entitled for MACP w.e.f. 01.01.2006. This Court in Balbir Singh
Turn (supra) upheld the said finding recorded by the Armed
Forces Tribunal. Instructions issued on 30.05.2011 were found
to be contrary to the resolution dated 30.08.2008 as, according
to the resolution 01.01.2006 was the effective date for
implementation of MACPS in matters relating to pay and
dearness allowance.
10. In M.V. Mohanan Nair (supra) a three Judge Bench of
this Court considered the ACPS as well as the MACPS to hold
that the schemes are in the nature of incentive schemes which
were brought into force to relieve stagnation. This Court was of
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the considered view that the Respondents therein were entitled
only to the benefit of next grade pay in the pay band and not to
the benefit of grade pay of next promotional post. As the
MACPS is a matter of Government policy pursuant to the
recommendations made by the Pay Commission, this Court
refused to accept submissions of the employees that MACPS
should be made applicable w.e.f. 01.01.2006.
11. In view of the judgment of this Court in M.V. Mohanan
Nair (supra), the Respondents and other similarly situated
employees are entitled for financial upgradation under MACPS
only to the next grade pay and not to the grade pay of next
promotional post. It is clear from the resolution dated
30.08.2008 that the recommendation of the 6 th Pay
Commission was accepted by the Government and was made
effective from 01.01.2006 in respect of civilian employees with
regard to revised scales of pay and dearness allowances. In so
far as the revised allowances other than dearness allowance,
recommendation of the 6th Pay Commission were given effect
from 01.09.2008. The judgment in M.V. Mohanan Nair (supra)
clinches the issue. Benefits flowing from ACP & MACP
Schemes are incentives and are not part of pay. The resolution
dated 29.08.2008 is made effective from 01.09.2008 for
implementation of allowances other than Pay and DA which
includes financial upgradation under ACP & MACP Schemes.
Therefore, the Respondents and other similarly situated officers
are not entitled to seek implementation of the benefits of
MACPS w.e.f. 01.01.2006 according to the resolution dated
29.08.2008. Moreover, the implementation of MACPS by
granting financial upgradation only to the next grade pay in the
pay band and not granting pay of the next promotional post
w.e.f. 01.01.2006 would be detrimental to a large number of
employees, particularly those who have retired. We find force
in the submission made by the learned Additional Solicitor
General that uniform implementation of MACPS for civilian
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employees w.e.f. 01.01.2006 would result in large scale
recoveries of amounts paid in excess.
This Court finds it appropriate to rely upon judgment of Supreme
Court in Balbir Singh Turn's case (supra) rather than R.K.Sharma's case (supra)
because both the judgments have been delivered by equal strength of Benches and
subsequent judgment has noticed earlier judgment but not commented upon it in
any manner.
The respondents have further relied upon judgment of this Court in
Haryana State Adhyapak Sangh (supra). The said judgment is distinguishable and
is inapplicable to present case. The legislative provisions governing service
conditions of the petitioners are contemplating a different scheme than discussed in
the said case, thus, said judgment does not advance the case of respondents.
29. In the wake of above discussion and findings, present petitions
deserve to be allowed and accordingly allowed. The impugned order dated
06.09.2017 (Annexure P-19) is hereby quashed.
30. There is one petitioner in CWP No.24319 of 2016 and there are two
petitioners in CWP No. 2864 of 2012. The petitioners are claiming ACP w.e.f.
01.01.1996 and extension of ACP to them is going to create additional financial
burden upon Chandigarh Administration. It may also create rights in favour of
other similarly situated employees who have not approached this Court. The
respondent prior to 23.05.2018 was extending pay scales of the State of Punjab by
way of different letters/instructions, however, respondent by way of notification
dated 23.05.2018 has made 1979 Act and 2013 Act applicable to the employees of
Privately Managed Govt. Aided Schools of Chandigarh Administration. To
maintain balance and avoid burden on public exchequer, this Court finds it
appropriate to hold that benefits of ACP would be available to similarly situated
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employees w.e.f. 23.05.2018 and the petitioners who are 03 in number would be
entitled to benefits of ACP at par with employees of schools of Chandigarh
Administration w.e.f. 01.01.1996. It is made clear that they shall not be entitled to
interest on the arrears. The respondent shall calculate and release arrears of
petitioners within three months from today.
31. Both the petitions are disposed of in above terms.
(JAGMOHAN BANSAL)
JUDGE
16.04.2024
anju
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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