PRADIP KUMAR NEOG vs THE STATE OF ASSAM AND ORS

1.Heard Ms. R. Devi, learned counsel for the petitioner. Also heard Mr. N. Sarma, learned standing counsel for the Secondary Education

Department.

The petitioner was initially appointed as an Asstt. Teacher in the Missamora Higher Secondary School in the Jorhat district in the scale of pay of

Rs.260/- â€" 425/- per month as per the order of the Inspector of School dated 12.02.1982. By another order of the Inspector of School, Jorhat dated

13.08.1982, the respondent No.4 who was earlier serving as an Office Assistant in the said school was allowed to work as an Asstt. Teacher in the

under graduate scale of pay against a retired vacancy. The Missamora Higher Secondary School was brought under the deficit scheme of grants-in-

aid on 01.04.1959 and thereafter, it was provincialised under the Assam Secondary Education (Provincialisation) Act, 1977. Prior to allowing the

respondent No.4 to work as an Asstt. Teacher, he was appointed as the Office Assistant in the Missamora Higher Secondary School against the

substantive post by the Inspector of School as per its order dated 31.01.1976 and at the time of his appointment, the scale of pay applicable to the

respondent No.4 in the post of Office Assistant was Rs.240/- - 380/- per month. The petitioner was upgraded as a graduate science teacher as per

the order of the Inspector of School, Golaghat dated 09.06.1992 w.e.f. 20.11.1991 and upon being upgraded, the scale of pay applicable to the

petitioner was 525-12-585-15-660-EB-20-920/- per month.

By another order dated 22.12.1993 of the Inspector of Schools, the respondent No.4 was also upgraded as a graduate teacher w.e.f. 01.04.1992.

After the upgradation, the petitioner’s scale of pay as made applicable was Rs.525/- - 920/-, whereas, the scale of pay made applicable to the

respondent No.4 was Rs.600/- - Rs.920/-. The petitioner also takes a stand that under the service jurisprudence, there is no provision for upgrading an

Office Assistant to that of Asstt. Teacher in the circumstance, where the cadre of Office Assistant and the cadre of Assistant Teachers are different

and it is neither a promotional post and nor a feeder cadre.

In the circumstance, this writ petition has been preferred by the petitioner praying for a parity in pay between the petitioner and that of the

respondent No.4 and it is more so in view of the fact that as an Assistant Teacher, the petitioner was appointed prior to the respondent No.4 and

therefore, the scale of pay cannot be less than that of the respondent No.4.

In any other circumstance, the said prayer of the petitioner would have been readily accepted inasmuch as, a person who is senior and appointed

prior in the same cadre cannot be paid a scale of pay, which is lower than a person who is subsequently appointed. But in the instant case, it is noticed

that it is the stand of the state respondent authorities that the respondent No.4 was paid a higher scale of pay inasmuch as, he had earlier worked as

an Office Assistant. The said contention of the said respondent cannot be accepted inasmuch as, the appointment of the respondent No.4 as an

Assistant teacher in the school has to be construed to be a fresh appointment and the same cannot be a continuation of his earlier appointment as an

Office Assistant. In this respect, the contention of the petitioner is accepted that the cadre of Office Assistant and the cadre of Assistant Teacher are

two different cadres and therefore, there can neither be any upgradation, promotion etc., from one cadre to the other.

In such view of the matter, this Court is of the view that the higher scale of pay paid to the respondent No.4 was incorrect and it did not have the

sanction of law. Having arrived at the aforesaid conclusion in the instant case, if at this stage, the prayer of the petitioner is to be accepted, directing

the respondent authorities to pay him a scale of pay which is either equal or more than that of the respondent No.4, it would also amount to directing

the respondent authorities to pay the petitioner a scale of pay, which he otherwise is not entitled under the law. The claim of the petitioner also cannot

be compared with that of the respondent No.4 to make it the basis for a direction in his favour inasmuch as, if the same is done, it would amount to

give the petitioner the benefit of a negative equality, which is impermissible under Article 14 of the Constitution of India.

In such view of the matter, although it has to be said that the petitioner was deprived inasmuch as, a person subsequently appointed was given a

higher scale of pay but at the same time, such higher scale of pay was given against the provision of law and as such, no direction can be issued in

favour of the petitioner for a similar benefit, which would result in an inter se comparison with an undue benefit being given to the respondent No.4.

Therefore, we do not further pursue with this writ petition. Writ petition stands closed.Interim order, if any, passed earlier stands vacated.