Mohan Singh Rawat vs State Of Uttarakhand & Others

Lok Pal Singh, J

1) By means of present writ petition, the petitioner seeks following reliefs, among others:

i) Issue a writ, order or direction in the nature of certiorari quashing the order dated 23.11.2017, passed by respondent no. 1, contained as Annexure no. 15 to the writ petition.

ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to fix the salary of the petitioner after granting selection grade with effect from 01.09.1987 and thereafter promotional pay scale with effect from 01.09.1999 and pay him arrears in accordance with law.

2) Facts leading to filing of present writ petition, in brief, are that the petitioner was initially appointed as Asstt. Teacher in C.T. grade on 01.09.1977 in Uprahikhal Inter College, Pauri Garhwal. Thereafter, the petitioner was transferred to D.A.V. Inter College, Pauri in the year 1978 and is working there since then. Vide order dated 01.09.1987, the erstwhile State of Uttar Pradesh declared the C.T. grade as dying cadre. In view of the decision taken by the Government Order dated 19.10.1989, services of the petitioner were merged in L.T. grade w.e.f. 01.09.1987. Subsequently, the petitioner was promoted to the post of Lecturer on 04.12.2000. State of Uttarakhand issued a Government Order dated 04.06.2005 in respect of Govt. Secondary Schools providing therein that those teachers who were in C.T. grade and have completed five years satisfactory service on 19.02.1991, their services shall be merged in L.T. grade. Feeling aggrieved by the G.O. dated 3rd June 2005, Uttaranchal Madhyamik Shikshak Sangh and others filed Writ Petition no. 932 (M/B) of 2005, titled as Uttaranchal Madhyamik Shikshak Sangh Vs. State of Uttaranchal and others, for quashing the G.O. dated 03.06.2005. The Division Bench of this Court vide judgment and order dated 01.12.2006 was pleased to quash the G.O. dated 03.06.2005. Feeling aggrieved, State of Uttarakhand preferred Special Leave to Appeal (Civil) no. CC 1120-1121/2011. The said SLP was dismissed by the Hon'ble Apex Court vide judgment and order dated 14.02.2011. Subsequently, State of Uttarakhand issued an order dated 21st November 2006 providing therein that for grant of selection grade / promotional pay scale to those teachers who were in C.T. grade and subsequently their services have been merged into L.T. grade, the services rendered in C.T. grade prior to merger in L.T. grade shall be counted. The said approval was given with a condition that those teachers shall not be entitled for arrears of salary. It is further provided that those teachers who are not willing for the same will not be entitled for the benefit of G.O. dated 21.11.2006.

3) Pursuant to the G.O. dated 21.11.2006, the petitioner was given the selection grade vide order dated 13.09.2007 having considered the fact that his services got merged w.e.f. 01.09.1987 in L.T. grade and consequently, the salary of the petitioner was fixed. Thereafter, the Director, School Education, Uttarakhand wrote a letter to all the District Education Officers, Uttarakhand on 08.02.2008, stating therein that those C.T. grade teachers who have completed five years satisfactory service on or before 19.02.1991 and those who have completed ten years service as a C.T. grade on or before 01.01.1996, their services shall be merged in C.T. grade and directed that the compliance of G.O. dated 21.11.2006 be implemented and if any wrongful merger, grant of selection grade, promotion have been made the same may be corrected accordingly. So far as the C.T. grade teachers promoted on or before 19.02.1991 are concerned, instructions have been sought from the Government of Uttarakhand in this regard.

4) Petitioner filed his representation on 10.08.2013 stating therein that he may be granted the benefit of judgment passed by the High Court and affirmed by the Hon'ble Apex Court, but no decision was taken by the respondents. In the meantime, the petitioner got retired from service in the year 2016, but his representation was not decided even after his retirement, therefore, the petitioner was constrained to file a writ petition before this Court. A co-ordinate Bench of this Court vide order dated 17.07.2017 passed in WPSS no. 531 of 2015, Mohan Singh Rawat Vs State of Uttarakhand and others, disposed of said writ petition with a direction to the Secretary, School Education Department, Govt. of Uttarakhand to consider the letter issued by the Director, School Education, Uttarakhand dated 08.02.2008 and take appropriate decision, in accordance with law, within a period of eight weeks from the date of presentation of certified copy of this order.

5) Pursuant to the directions issued by this Court the matter was considered by respondent no. 1 and by impugned order dated 23.11.2017, rejected the representation of the petitioner with the observation that in view of the G.O. dated 21.11.2006 as the C.T. grade was declared dying cadre, consequently those C.T. grade teachers who were working on 01.10.2006 their services shall be merged in L.T. grade by adding the services rendered by them in C.T. grade earlier. Those teachers will be entitled to get the benefit of selection grade and promotion w.e.f. 30.09.2006 and will not be entitled to get any arrears of the salary. In pursuance of the aforesaid G.O., written consent was taken. It is stated that the petitioner, who had completed 22 years continuous satisfactory service and was granted the selection grade w.e.f. 19.02.1991, was entitled to be promoted on the post of Lecturer in the year 2003, but he had been promoted on 04.12.2000. As the petitioner has been promoted on 04.12.2000, therefore, he would not be entitled for the promotional pay scale after the year 2003 and rejected the representation.

6) It is contended that the representation of the petitioner has illegally been rejected taking into consideration the G.O. dated 03.06.2005 and without taking into consideration the fact that the G.O. dated 22.11.2006 was passed and instead of taking decision pursuant to the G.O. dated 22.11.2006, the decision has been taken in arbitrary manner.

7) Respondent no. 3 filed his counter affidavit stating therein that by G.O. dated 19.02.1991, C.T. grade cadre was declared dying cadre and thereafter G.O. dated 04.06.2005 was issued, which suggests that those teachers who had completed 5 years satisfactory service as on 19.02.1991 or thereafter their services shall be merged in L.T. grade. It is further contended that on completion of 10 years satisfactory service w.e.f. 01.09.1997, the services of the petitioner were merged in L.T. grade on 01.09.1987 and thereafter on completion of 10 years satisfactory service the petitioner was granted L.T. grade on 01.09.1999 and subsequently he was promoted on 04.12.2000 as Lecturer and was granted the selection grade on the post of Lecturer. It is further contended that the G.O. dated 12.07.2002 was issued which provides that the selection grade / promotional pay scale will be applicable and if in between no promotion to the incumbent is granted and even if the incumbent refused to accept the promotion yet the incumbent will not be granted selection grade / promotional pay scale. It is further contended that since the petitioner has already been promoted, therefore, he was not entitled for the selection grade.

8) Misc. Application no. 14593 of 2019 has been filed for taking the supplementary counter affidavit on record. Learned counsel for the petitioner makes a statement at Bar that he does not wish to file supplementary rejoinder affidavit to the supplementary counter affidavit as the supplementary counter affidavit contains the same version as contained in the counter affidavit. Therefore, Misc. Application no. 14593 of 2019 is allowed. Supplementary counter affidavit is taken on record.

9) In the supplementary counter affidavit filed on behalf of respondent no. 3 it has been stated that the Government Orders dated 01.09.1987 and 01.02.1991 were issued by the State and service of the C.T. grade teachers were merged as an L.T. grade, but the same should be merged w.e.f. 19.02.1991 and not w.e.f. 01.09.1987. It is further contended that in view of the G.O. dated 21.11.2006, the services of the petitioner were merged as L.T. grade w.e.f. 01.09.1987 mistakenly, therefore, the petitioner is not entitled for the service benefit having considered his services merged w.e.f. 01.09.1987.

10) Heard learned counsel for the parties and perused the entire material brought on record.

11) A perusal of the record would reveal that the respondents are taking benefit of G.O. dated 3rd June 2005, whereof the G.O. dated 03.06.2005 has been set aside by the Division Bench of this Court and affirmed by the Hon'ble Apex Court, therefore, any condition laid in the G.O. dated 03.06.2005 is not available to the respondent and the respondents cannot take the benefit of the said G.O., which is not in existence. Having gone through the provisions contained in the G.O. dated 21.11.2006, it is apparent that there is only an embargo in the said G.O. that those teachers who have been given the selection grade and promotional pay scale w.e.f. 30.09.2006, no arrear shall be paid to them. So far as the G.O. dated 21.11.2006 is concerned, the said embargo does not apply to the petitioner as the selection grade was given to the petitioner vide order dated 30.09.2017. The contention of the respondent in the impugned order is that since selection grade was given to the petitioner mistakenly, therefore, petitioner is not entitled for any service benefit. It is further contended that the petitioner cannot take undue benefit of the mistake committed by the Department.

12) Having gone through the submission of learned Standing Counsel for the State and on perusal of the representation it is apparent that the respondents have not taken any measures to correct the mistake in fixation of salary after selection grade was granted to the petitioner. A perusal of the impugned order would further reveal that as the services of the petitioner were merged w.e.f. 19.02.1991 and selection grade was given to him and he completed 22 years continuous satisfactory service and he was promoted as a Lecturer on 04.12.2000, therefore, the respondents cannot deny the benefit of promotional pay scale to the petitioner. The impugned order, therefore, cannot sustain in the eyes of law and is liable to be set aside. Impugned order dated 23.11.2017 is hereby set aside.

13) Consequently, the writ petition is allowed. Respondents are directed to fix the salary of the petitioner after granting him selection grade w.e.f. 01.09.1987 and subsequently the promotional pay scale be granted to him w.e.f. 01.09.1999.

14) No order as to costs.