Dr. (Mrs.) Vandana Sharma vs State of Uttarakhand and others

,,,,,,

ALOK SINGH, J.",,,,,,

K.M. JOSEPH, C.J. (Oral)",,,,,,

Petitioner has approached this Court challenging order dated 07.10.2014 (Annexure No. 6). Petitioner also seeks a direction to respondent Nos. 2 &,,,,,,

3 to fix the pay scale of the petitioner with effect from 01.01.2006 in terms of Government Order dated 11.11.2009, equivalent to respondent Nos. 6 &",,,,,,

7 and to release the arrears without inordinate delay.,,,,,,

The petitioner was appointed on 07.08.1981 as a Lecturer. She joined on 18.08.1981. She acquired Ph.D. on 19.09.1998. Respondent No. 6 was,,,,,,

appointed on 01.02.1982 and respondent No. 7 was appointed on 19.02.1985. Respondent No. 7 acquired Ph.D. on 17.09.2010. Complaining that,",,,,,,

since the petitioner had obtained Ph.D. on 19.09.1998 and as, in terms of Government Order dated 16.02.1999, those who had obtained Ph.D. were",,,,,,

entitled to two increments, and as the same were not being given to her, she filed Writ Petition (SB) No.303 of 2013. Pursuant to the direction given",,,,,,

by this Court, the petitioner was, in fact, given two more increments.",,,,,,

The present writ petition is filed complaining that, though, by order dated 11.11.2009, Government of Uttarakhand adopted the revised pay scales as",,,,,,

per the recommendations of the Sixth Pay Commission, petitioner is getting lesser pay than respondent Nos. 6 & 7.",,,,,,

We notice from the order-sheet that the petitioner has not pressed the relief in respect of respondent No. 7. It is the said claim of the petitioner,",,,,,,

which has been rejected by the impugned order.,,,,,,

We have heard Mr. Amar Shukla, learned counsel for the petitioner; Mr. Rajeev Singh Bisht, learned Brief Holder for the State; and Ms. Sonia",,,,,,

Chawla, learned counsel appearing for respondent No. 4 / University.",,,,,,

Learned counsel for the petitioner would point out that the order, which is impugned, does not give any reasons. The impugned order reads as",,,,,,

follows:,,,,,,

“To,",,,,,,

The Principal,",,,,,,

Government Post Graduate College,",,,,,,

Rishikesh (Dehradun),,,,,,

Letter No. Degree Service/9598/2014-15 dated 7th October, 2014",,,,,,

Sir,",,,,,,

On the above subject, kindly take reference of your office letter No.562/dated 16.09.2014 annexing therewith the letter concerning the pay anomaly of",,,,,,

Dr. Smt. Vandana Sharma, Associate Professor-Geography, has been forwarded to the Directorate for taking necessary action.",,,,,,

In respect of the above, the enquiry/examination of the matter was made in light of the arrangement as mentioned in the G.O. No.138/viii/xxix(6)/2009",,,,,,

dated 11.11.2009. After such examination, the pay determination of Dr. Smt. Vandana Sharma was found correct. As a result, the said teacher would",,,,,,

be paid the salary as being paid at present. Accordingly, kindly ensure the apprising of the concerned teacher at your level. You are also directed that",,,,,,

in future, the disposal of subject-wise matters be ensured at your own level and then submit it for disposal to the directorate.",,,,,,

Yours truly,",,,,,,

(Dr. Jagdish Prasad),,,,,,

Director,,,,,,

Uttarakhand Haldwani (Nainital),,,,,,

A counter affidavit has been filed. Petitioner took us through the counter affidavit. In the counter affidavit, what is essentially stated is that the",,,,,,

petitioner is not entitled to have her salary in the revised scale stepped-up to that of the sixth respondent in terms of clause (14) of order dated,,,,,,

11.11.2009. The English translation of the said order reads as follows:,,,,,,

“By,",,,,,,

Shatrughan Singh,",,,,,,

Principal Secretary,",,,,,,

Uttarakhand Government.,,,,,,

To,",,,,,,

The Vice Chancellor, Kumaon University, Nainital/ Uttarakhand Open University, Haldwani/Doon University, Dehradun & HNB Garhwal",,,,,,

University (Central University), Srinagarh Garhwal.",,,,,,

Director, Higher Education, Haldwani, District Nainital.",,,,,,

Education Department-6 (Higher Education) Dehradun Dated 1st November, 2006",,,,,,

Subject: Change of nomenclature for the posts of Teachers & Equivalent Cadre on the basis of recommendation of Sixth Pay Commission in the State,,,,,,

Universities (Kumaon University, Nainital, Uttarakhand Open University, Haldwani and Doon University, Dehradun) in light of the guidelines of the",,,,,,

Government of India as also revising the pay-scales.,,,,,,

Sir,",,,,,,

On the above mentioned subject, I have been directed to submit that for the State Universities and its affiliated/ associated Colleges managed and",,,,,,

controlled by the U.P. State Universities Act, 1973 (as applicable in the State of Uttarakhand also), the Governor is pleased, by giving full benefits to",,,,,,

the educational and other equivalent posts as well, on the basis of recommendations of Sixth Pay Commission, in respect of the pay-scales as",,,,,,

mentioned in Table-4 of the List annexed in Annexure 3, is pleased to give them the name of post as per List-4 and its pay band and as per List-7, as",,,,,,

per the Grade Pay (leaving the special allowances) hereby directs its application w.e.f. 1st January, 2006. The pre-revised pay scales would be",,,,,,

applicable on the State Universities under the Education Department viz. Kumaon University, Nainital, Uttarakhand Open University, Haldwani, Doon",,,,,,

University, Dehradun and HNB Garhwal University, Srinagar (before becoming the Central University i.e. till 14th January, 2009) in the State",,,,,,

Universities and affiliated non-aided Colleges.,,,,,,

As per letter No.1-32/2006-U-11/U(i) dated 31st December, 2008 of the Human Resource Development Ministry Government of India in terms of",,,,,,

sub-section (a) to (f) of Section 8, the Rules as per the provisions of superannuation as mentioned in clause (f) and other heads would be applicable",,,,,,

and all other mentioned terms and conditions have been accepted by the Subordinate State Universities and the Director, Higher Education, Haldwani.",,,,,,

The pre-revised scales for the posts of educational and other equivalent, being maintained as per the guidelines of the Government of India, would be",,,,,,

maintained as on 1.1.2006 and the additional 80 percent burden till 31.3.2010 would be adjusted by the Government of India and remaining 20 percent,,,,,,

would be borne by the State Government.,,,,,,

For the posts filled up after 1.1.2006 and after 1.4.2010, the entire financial burden would be borne by the State Government.",,,,,,

As a result of revision of pay scales, for the period from 1st January, 2006 till 30th September, 2006, the amount of due arrears would be deposited",,,,,,

in the Provident Fund/Employee Provident Fund accounts of the Teachers. For those teachers whose provident fund/employees provident funds have,,,,,,

not been opened and who are the members of Employee Pension Plan, after deducting their due amount would be given in the form of National",,,,,,

Savings Certificate. In respect of the teachers coming under the income tax ambit, after analyzing the arrears and after making the deduction at the",,,,,,

tax deducted at source, if",,,,,,

(1) the income tax is payable 20 percent or more then after all deductions, their remaining arrears would be deposited in the account of provident fund",,,,,,

(2) in case of due amount being less than 20 percent, after the actual deduction of income tax, the entire amount of arrears would be deposited in the",,,,,,

account of teacher.,,,,,,

The pre-revised pay scales shall be admissible with the following riders:-,,,,,,

(a) Due to such pre-revised pay scales on the aforesaid plan of the Government of India, for the posts working as on 1.1.2006/ as per the filled up",,,,,,

posts, the 80 burden of the total expenditure would be born by the Government of India and remaining 20 percent financial burden would be borne by",,,,,,

the State Government.,,,,,,

(b) In the State Universities, State Colleges and aided non-government Colleges under the control of higher education department of the State, in the",,,,,,

educational cadre and equivalent cadre, as per the above mentioned letter dated 31st December,2006 of the Human Resource Development Ministry,",,,,,,

Government of India, for the posts and pay scales as mentioned in Para no.2 to 6 (leaving the special allowances) which are accepted equivalent to",,,,,,

the pre-revised pay scales and in the said guidelines, the provisions of superannuation mentioned in Para 8(f) of other conditions, other provisions of",,,,,,

age and other allowances, the State Government provisions would be applicable and by adding it and accepting the remaining provisions, except the",,,,,,

above mentioned pay scale of UGC, all other remaining terms, conditions and all other guidelines would be applicable.",,,,,,

(c) The conditions as mentioned in Human Resource Development Letter, Govt. of India mentioned in letter No.1-32/2006-U-11/U-1(i) dated 31st",,,,,,

December, 2008, the provisions as mentioned in Para 8(p)(v)(g) would also be applicable.",,,,,,

(d) Along with the above mentioned pre-revised pay scales, no special allowance would be admissible in the Colleges and Universities.",,,,,,

(e) In the pre-revised pay scales, after 1.1.2006, for the equivalent posts/pay-scales of the State Government, as per the conditions mentioned from",,,,,,

time to time, the dearness allowance would be admissible.",,,,,,

With a view to implement the new pay scale, as per the above para-2, the calculation of the desired excess amount in respect of matters of",,,,,,

Universities would be made by the concerned Finance Officer and for the Teachers of College and other equivalent posts, Director, Higher Education,",,,,,,

Haldwani would be made and its information would be sent to the UGC/Government at the earliest so that according to it, the financial acceptances",,,,,,

may be issued.,,,,,,

In respect of the pre-revised pay scales applicable w.e.f. 1st January, 2006, the teachers would be required to submit the following option:-",,,,,,

(1) Every teacher who was in continuous full time service as on 1st January, 2006, his pay determination would be made as per these orders.",,,,,,

(2) Every teacher in the present pay scales and in the next or till the date of some consecutive increment or the date of vacating post by him or till,,,,,,

leaving the pay drawing in the pay scale by him, may opt for getting salary in the present pay scale.",,,,,,

(3) The selection of option to the concerned teachers would be required to be filled as per Annexure-1 and this option should reach to the Officer,,,,,,

issuing the pay slip / appointing authority, whosoever keeps the book of concerned teacher, within 90 days from the date of issuance of this",,,,,,

government order.,,,,,,

(4) The receipt of the option given as above would be accepted by the said concerned officer.,,,,,,

(5) If the written option of the concerned teacher as per the above clause (3) is not received within the stipulated period then it should be deemed that,,,,,,

the pre-revised pay scale is admissible to him and his pay determination in the pre-revised pay band shall be made as on 1.1.2006.,,,,,,

(6) Once an option is given, it would be final.",,,,,,

(7) For those teachers whose services have been terminated as on 1.1.2006 or later to it, then as a result of ending of sanctioned posts, who have",,,,,,

been relieved, due to resignation, relieving due to indiscipline or have been terminated, would also have the option of using the above facility.",,,,,,

(8) Those teachers who have expired on 1.1.2006 or later to it and for this reason within the prescribed time lit, they could not submit their option for",,,,,,

pre-revised pay scale, in their matters, on 1.1.2006 or any date later to it, whichever date is beneficial for his dependents, their pay determination",,,,,,

Sr. No.,Name,"Old Basic Pay

as on 31st

Dec., 2005","O l d date of

increment","Revised salary

as on

01.01.2006","Next Increm-

ent date","Salary revised

after increment

1.,"D r. (Smt) Vandana

Sharma (Petitioner)","16,200",1 August,"39,690 BP

+9,000 GP

48,690",01.07. 2006,"41,160 BP

+9,000 GP

50,160

2.,"Smt. Sudha Bhardwaj

(Respondent no. 5)","15,780",1 February,"39,690 BP

+9,000 GP

48,690",01.01. 2006,"41,160 BP

+9,000 GP

50,160

3.,"D r . (Smt) Mamta

Dyundi (Respondent

No. 6)","14,940",1 July,"3 8 , 5 3 0 BP

+9,000 GP

47,530",01.07. 2006,"39,960 BP

+9,000 GP

48,960

the form of basic pay, then, what is the reason for denial of benefit under Clause (14) of the Government Order dated 11.11.2009. If increments are",,,,,,

also added to the basic pay as on 31.12.2005, what is the position, is not clear. According to the learned counsel for the petitioner, increments form",,,,,,

part of the salary and, in this regard, he relies on a judgment of the Apex Court in the case of Gurcharan Singh Grewal and another vs. Punjab State",,,,,,

Electricity Board and others, reported in (2009) 3 SCC 94.",,,,,,

We would think that, in view of the nature of the order which has been passed and the absence of clarity, the matter must be looked into by the",,,,,,

Director and a decision must be taken. Accordingly, we allow the writ petition; set aside the impugned order (Annexure 6); and direct the Director to",,,,,,

pass an order giving reasons in support of his order. The order will be passed within a period of six weeks from the date of production of a certified,,,,,,

copy of this judgment before him. We make it clear that the exercise is to be done qua the case of the petitioner as against respondent No. 6.,,,,,,