Smt. Asha Devi And Anr vs State Of Sikkim And Anr
2021 Latest Caselaw 29 Sikkim

                                                 Approved for Reporting

   IN THE HIGH COURT OF SIKKIM : GANGTOK
                      (Civil Extraordinary Jurisdiction)

                        WP(C) No. 16 of 2017


            1.    Smt. Asha Devi,
                  W/o Late A.K. Mishra,
                  Aged about 58 years,
                  R/o Ward No.07, Bhaktiyar,
                  Malinagar, Samastipur,
                  Bihar-848125

            2.    Shri Sudhansu Shekhar,
                  S/o Late A.K. Mishra,
                  Aged about 30 years,
                  R/o Ward No.07, Bhaktiyar,
                  Malinagar, Samasthipur,
                  Bihar-848125.
                                                           ...    Petitioners

                               Versus

            1.    State of Sikkim,
                  Represented by and through
                  The Principal Secretary,
                  Human Resources Development Department,
                  Government of Sikkim,
                  Gangtok, East Sikkim.

            2.    The Secretary,
                  Department of Personnel,
                  Administrative Reforms & Training,
                  Government of Sikkim,
                  Gangtok, East Sikkim.

                                                           ...   Respondents

                        BEFORE
   HON'BLE MR. JUSTICE JITENDRA KUMAR MAHESHWARI, CJ.


For Petitioner    :     Mr. A. Moulik, Senior Advocate with
                        Ms. K.D. Bhutia, Advocate

For Respondents :       Dr. Doma T. Bhutia, Addl. Advocate General
                        assisted by Mr. S.K. Chettri, Government
                        Advocate
                        Mr. H.P. Dhakal, Addl. Director (Legal),
                        Education Department, Government of Sikkim.

Date of Hearing
and Judgment      :     05.07.2021
                                                                                        2
                                  WP(C) No.16 of 2017
                      Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.


                          JUDGMENT (O R A L)

1. This Writ Petition under Article 226 of the Constitution of India

was filed by the deceased retired employee Mr. A.K. Mishra 0n

03.04.2017, seeking direction to grant pay scale at par with Mr. S.M.

Singh, a Graduate Teacher in the regular establishment, who was

drawing the basic pay of Rs.7900/- as on 22.06.1996 in the pay scale of

Rs.7,000-11,500. A direction has also been sought for to grant of pay to

the deceased petitioner in the pay scale of Rs.7500-12000 with effect

from 22.01.1997 as he was entitled for advancement grade scale of

Headmaster, Secondary School. It is further prayed that the deceased

petitioner shall be given the scale of pay of Rs.9000-13800 with effect

from 22.01.2002 after completion of five years service with effect from

21.01.1997 as per the Appendix-II of Sikkim Government Revised Pay

(Amendment) Rules, 1998. The negative reliefs are also prayed, but it

is having no relevance, therefore, it has not been referred. The original

petitioner was died on 17.06.2018, therefore, the names of present

petitioners were substituted vide Order dated 27.08.2018.

2. The facts unfolded to file the present Writ Petition are that

deceased petitioner was posted as Science Graduate (Math) Teacher at

Hee - Gyathang High School on contractual basis for a period of three

years vide Order dated 15.07.1981, where he joined on 20.07.1981.

The said period of contractual appointment continued without

regularizing his service, however, the deceased petitioner and some

other similarly situated employees had filed Writ Petitions those were

WP(C) Nos. 27/1994, 30/1994, 04/1995 and 17/1995. All these

petitions were commonly decided vide Order dated 13.12.1995 issuing

the direction to State to formulate the policy for regularization of

service to the adhoc or contractual non-local teachers, Graduate or Post

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

Graduate and to consider their service for regularization. In the order, it

was specified that for the purpose of notional fixation and pension, the

services rendered by the teachers during contractual or on adhoc

appointment shall be counted as qualifying service.

3. The State Government has formulated a regularization policy

which was Notified on 14.02.1996. As per the said policy the case of

the deceased petitioner was considered and he was regularized vide

Order dated 19.06.1996 (Annexure P-1) in the pay scale of Rs.1520-40-

1600/EB-50-2300/EB-60-2660 (unrevised) with effect from the date he

takes over the charge of the post. The deceased petitioner, accordingly,

joined the regular services and continued on the post as Graduate

Teacher. He attained the age of superannuation in the year 2017 after

getting the Grade Pay as per the Sikkim Government Services

(Advancement Grade) Rules, 1999, for short, "Grade Pay Rules". It is

also the fact that with effect from 01.01.1996 the scale of pay of

Rs.1520-2660 has been revised by the Sikkim Government Services

(Revised Pay) Rules, 1998 (for brevity it be called Revised Pay Rules) in

the scale of Pay of Rs.5500-175-9000. It is not in dispute that on the

date of regularization i.e. 19.06.1996 the Revised Pay Rules were not in

existence, however, the regularization of the deceased petitioner was

ordered in unrevised pay scale. After commencement of Revised Pay

Rules, the State Government has passed the order on 21.05.1999

(Annexure R-5) extending the benefit of revised pay scale and on

29.07.2005 (Annexure R-6) on completion of ten years continuous

service as a Graduate Teacher, extending the Grade Pay.

4. By filing this petition it is contended by Mr. A. Moulik, learned

Senior Counsel that under the Grade Pay Rules, on completion of the

period as specified in the Appendix, subject to clearance by the

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

Departmental Promotion Committee, for short, "DPC", due to not having

any adverse entry in their confidential reports in preceding three years

prior to consideration for advance grade, he would be entitled for grant

of grade pay as per the Grade Pay Rules counting the period of

contractual appointment from the initial date and fixation of pay on the

date of regularization ought to be done accordingly.

5. He further contends that as per the Rule 4, Column No.11 of the

Education Department (Principals of the Senior Secondary Schools and

Headmasters of the Secondary Schools) Recruitment Rules, 1992, for

short, "Recruitment Rules, 1992", on completion of regular service of

five years he/she is entitled to get the benefit of Grade Pay Scale of

Headmaster, thereafter, in the Grade Pay Scale of the Senior Secondary

School Teacher on completion of period so specified in the Schedule. It

is urged, as per the directions of this High Court his services were

regularized on 19.06.1996. It is submitted that the period of service

rendered by deceased petitioner on contract basis has not counted for

the purpose of promotion. On account of not granting promotion on

completion of five years, from the initial date of appointment and even

on completion of ten years on the date of regularization, benefit of

Grade Pay was not allowed as per Grade Pay Rules. Therefore, it is

contended that counting his service rendered on contract basis prior to

the regularization of deceased petitioner fixation ought to be made in

the scale as specified under the Grade Pay Rules and the subsequent

fixation as prayed in the Writ Petition may also be directed.

6. Per contra, Dr. Doma T. Bhutia, learned Additional Advocate

General representing the State contends that the regularization of the

deceased petitioner was directed vide order dated 19.06.1996 with

effect from the date he takes over the charge. It is contended as per

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

the Recruitment Rules, 1992, on completion of 5 years of regular

service he may be promoted as Headmaster. In case, he could not be

promoted, then as per the Grade Pay Rules on completion of 10 years

of service, subject to clearance by the DPC and not having any adverse

entry in the confidential reports in the preceding three years deceased

petitioner may be entitled for the corresponding scale as specified in the

Grade Pay Rules. Prayer made by the petitioners in this petition seeking

benefit of the Grade Pay Rules counting his service of contractual

appointment i.e. from the initial date of appointment is baseless and

contrary to the Rules.

7. Learned Additional Advocate General has further contended that

looking to the direction of this Court, the service rendered by the

deceased petitioner on contract basis prior to regularization cannot be

counted for promotion. In fact as directed by this Court, the said period

rendered on contract basis can be counted for the purpose of notional

fixation of pay and pension only and not for any other purpose. It is

further contended that in terms of the Recruitment Rules, 1992 and the

Grade Pay Rules his fixation has already been made as claimed in this

petition. She further said that the benefit as claimed at par with Mr.

S.M. Singh cannot be directed because his appointment since beginning

was on regular basis, therefore, there is no discrimination and the scale

which has been allowed to him cannot be granted to the deceased

petitioner. At last it is contended that this petition has been filed with

inordinate delay, therefore, the reliefs as prayed cannot be directed, in

particular, when the petition is filed on attaining the age of

superannuation by the deceased employee.

8. After having heard learned counsel appearing on behalf of both

the parties in the context of the unfolded facts of the present case and

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

from the previous order of this Court in the WP Nos. 27/1994, 30/1994,

04/1995 and 17/1995 dated 13.12.1995, the relevant paragraph is

hereby quoted which reads as thus:

"28. Keeping everything in view and all the matters considered in the preceding paragraphs we think that justice would be met if steps in the following manner are taken by the Government:

1. A scheme for regularisation of service, adhoc or contractual, of the non-local teachers, graduate or post-graduate, is to be formulated by the Government, following the guidelines as noted hereafter.

(a) An independent Committee or Service Commission is to be set up to find out candidates whose service might be regularised.

(b) Government will prepare a list of candidates who would be brought to the consideration zone of the Committee/Commission. The list should include all the petitioners before us.

(c) The Committee or Commission would prepare a list of eligible candidates in order of merit-cum-seniority.

(d) Candidate once interviewed or tested at the point of initial appointment or at any subsequent time, should not be asked for further interview or test.

(e) The list of eligible candidates would be prepared on the basis of service records including adverse remarks, if any, of each of the candidates.

2. All further appointments in existing and future vacancies are to be made on regular basis from the list of eligible candidates prepared by the Committee, one after the other.

3. While giving such appointments, restriction on entry-age should be waived.

4. Total period of service on adhoc or contractual basis, ignoring the period of break if any, is to be reckoned as qualifying service towards notional fixation of initial pay in the grade and also for the purpose of pension.

5. There will be no appointment on regular, adhoc or contractual basis either from locals or from non-locals till the list of eligible candidates, as prepared, is exhausted."

9. On perusal, it is clear that the Government was directed to

formulate a scheme for regularization of service of adhoc or contractual

non-local teachers, Graduate or Post Graduate, as the case may be.

Thereafter by setting up of an independent Committee the services

were to be regularized. It was clarified that who may be included in the

zone of consideration by the Committee, the list be prepared to that

effect. Thereafter, the Committee on exercising their wisdom shall

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

prepare the list of eligible candidates on interviewing them, if they were

not interviewed earlier or otherwise they be tested as per the wisdom of

the Committee. The future appointments on the future vacancies must

be restrained until all the contract/adhoc employees have been

regularized granting relaxation of age. It is specifically said that the

period of service rendered on adhoc/contractual basis ignoring the

period of break, if any, is to be reckoned as qualifying service towards

the "notional fixation of initial pay" and also for the purpose of pension.

Therefore, it is clear that the period of contract service rendered by the

deceased petitioner can be counted only for the purpose of fixation of

notional pay on his/her regularization or it may be counted for the

purpose of fixation of pension. Except for the said two purposes the

period rendered by the deceased petitioner on contract service cannot

be counted in particular for promotion or any other purpose.

10. As stated hereinabove it is not in dispute that the Revision of Pay

Rules, 1998 is made applicable with effect from 01.01.1996. Those

Rules were notified from 27.01.1998 prior to the said date,

regularization of the deceased petitioner was done on 19.06.1996, vide

order Annexure P-1. Therefore, in the said order, regularization was

ordered in the unrevised pay scale of Rs.1520-2660 because the

revisions of pay rules were came into force after regularization. After

commencement of the Revision of Pay Rules, 1998 the Government by

its own, issued the order of regularization of petitioner in a revised scale

of pay extending all benefits as specified. Therefore, it is clear that

service of the deceased petitioner was regularized appointing him with

effect from the date on which the deceased petitioner takes over the

charge of office, as apparent vide order dated 19.06.1996.

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

11. As per the spirit of the Grade Pay Rules, in particular Rule 6, it is

clear that the Government servant upto the level of Deputy Secretary

and equivalent shall be granted pay scale of the Advancement Grade on

completion of ten years of continuous service in a post/grade if they do

not get any promotion during the period as specified in the Appendix

subject to clearance by the DPC and on not having any adverse

confidential report in the preceding three years. Thus, it is clear if a

person could not get promotion upto a period of ten years from the date

of regular service as specified the benefit of Grade Pay Rule is

applicable to them.

12. It is not in dispute that the appointment of the deceased

petitioner was on the post of Graduate Teacher. The promotion of

Graduate Teacher to a higher post is governed by the Recruitment

Rules of 1992. As per Rule 4, it is clear that the method and

qualification required for recruitment and/or eligibility conditions for

promotion to the post of Principal and Headmaster shall be such, as

specified in column no.5 to 11 of the Schedule attached. The Schedule

has been appended thereby it is clear, as per column no.11, the

Graduate Teacher with B.Ed. with five years regular service may be

eligible to consider for promotion to the post of Headmaster. Thus, a

Graduate Teacher completed five years regular service then only he

may be entitled for grant of promotion to the post of Headmaster and

thereafter, further on the post of Principal of Senior Secondary School

as per the eligibility prescribed in column no.11 of the Rule. On conjoint

reading of Rule 6 of the Grade Pay Rules and Rule 4 of the Recruitment

Rules of 1992 with column no.11 of schedule, it is clear that promotion

of a Graduate Teacher to the Headmaster can only be possible after five

years of regular service. In case he could not get promotion upto ten

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

years from the date of regular service, as per Rule 6 of Grade Pay Rules

he may get Grade Pay Scale. Thus, benefit of Grade Pay Scale can only

be granted after ten years of regular service. Admittedly the deceased

petitioner was regularized on 19.06.1996 and the period of five years

would be counted from the date of regularization and not from the

initial date of contractual appointment for the purpose of grant of

promotion. If the deceased petitioner could not get promotion upto the

period of ten years, from the date of regular service, the benefit of

Grade Pay Scale can be granted to him but the period of ten years

cannot be counted from the date of contract appointment.

13. The contention as advanced by Senior Counsel that the fixation

ought to be made counting the service of contract appointment and on

completion of ten years of service under Grade Pay Rules is fallacious

which cannot be accepted in view of discussion made hereinabove.

Therefore, it is clear that in terms of the Promotion Rules, 1992 and the

Grade Pay Rules on completion of five years of regular service if the

deceased petitioner could not get promotion, then after ten years of

regular service subject to clearance by the DPC and not having the

adverse entries in the preceding three years in the confidential report

he/she may be entitled to get the benefit of the Grade Pay Scale. In

that view of the matter, the argument advanced by the petitioners

seeking benefit of the Grade Pay Scale counting the period of contract

appointment prior to regularization is impermissible, therefore, the

relief prayed in this Writ Petition cannot be directed in view of the

foregoing discussion.

14. It is to be observed here that the petitioners are unable to point

out that the Grade Pay Scale granted to him subsequently by the orders

of the Government is defective or not from due date. Therefore, the

WP(C) No.16 of 2017 Mrs. Asha Devi & Anr. vs. State of Sikkim & Anr.

said issue is not required to be discussed. As the issue involved in the

present case has already been dealt with on merit, therefore, the other

plea regarding delay and laches and maintainability is not relevant for

adjudication in this case.

15. In view of the foregoing discussion the inescapable conclusion can

be arrived is that the petitioners are not entitled to the reliefs as prayed

in this petition, accordingly, it is dismissed. In the facts and

circumstances, parties to bear their own cost.

Chief Justice jk/