State Of Uttarakhand And Others @APPELLANT@Hash Harish Singh Bora And Others

Sharad Kumar Sharma, J

This is a bunch of seven special appeals, though they arise out of a common judgment of learned Single Judge dated 27.03.2017, which has dealt

with all the writ petitioners, which entailed some minor factual differences, but since the major facts are law are interlinked as sought to be determined

by this Bench, these appeals are being taken up together and are being decided by this common judgment.

Briefly put, the case of the petitioners, while praying for grant of a writ of mandamus and consequently, the payment of benefit of time scale which

became payable on their completion of 10 years of satisfactory service from their respective date of appointment, to release it in their favour

immediately.

The Basic contention of the petitioners in the writ petitions was that they had worked for over ten years in their respective institutions which were

initially not under grant-in-aid and at that point of time, they were teaching upto 8th standard. Later on, these institutions were brought under grant-in-

aid and at the time when the respective institutions were brought under grant-in-aid, the petitioners were working in them. In fact, when the process of

bringing the institutions under grant-in-aid was going on, the institutions were initially recognized under category “B†institutions. The case of the

petitioners is that on account of institutions being brought under grant-in-aid, the Regional Assistant Director of Education (Basic) had also proceeded

for creation of posts by sending letter in this regard, on 18th February, 1995. Consequently, on the creation of the posts and with the permission was

accorded by the District Education Officer, the posts were advertised on 4th December, 1995. On being selected against these posts and on the

approval being granted by the District Education Officer, the appointment of the petitioners in each of the writ petitions was also granted financial

approval by the District Basic Education Officer though on different dates. As a consequence of which, they have joined and are working.

The State of U.P. had issued a Government order dated 2nd July, 1990 which provides the process of bringing institutions in grant-in-aid it provides

that after the grant of “B†category recognition which in fact, happens to be a temporary recognition, there would be permanent recognition being

categorized into “A†category. As a consequence of which, the institutions could be brought under the purview of grant-in-aid by the Government

orders to be issued in this regard, for example, the instant case being Government Orders No. 757/XXIV-2/2005 and G.O. 70/XXIV-4/2007 dated

24.05.2005, 30.03.2007 respectively, by virtue of which number of institutions were brought within the purview of grant-in-aid, which included the

institutions of the petitioners where they were working.

It is the case of the petitioners that their salary was fixed as per the recommendation made by the 5th Pay Commission w.e.f. the date of their

initial appointment and their case is furhter that at the stage of approval of their appointment by the Education Authorities salary was fixed,

particularly, on the approval of Education Officers even at the time when the institution was granted “Bâ€​ category recognized institutions.

The State Government vide Government Order 655/Madhyamik/2002 dated 12th July, 2002 had laid down the principle under which the time scale

would be granted to the employees and it declared that the time scale would be given on completion of 10 years of satisfactory service of an

employee. In pursuance of the Government order dated 12 July, 2002, the Management considered the case of the petitioners who have completed 10

years of service, to be paid with the time scale but despite of management making the reference, the matter remained pending for the Governments

report and no decision was taken. A reference was made in the pleadings to the letter written by the Director of Elementary Education on 21st

March, 2015, which provides that the fixation of pay, for the purpose of giving effect to the time scale benefits given by the Government order dated

12th July, 2002, the same may be made applicable after taking into consideration the service rendered by each of the petitioners from the initial date of

appointment and not w.e.f. from the date when the institutions were brought within the purview of grant-in-aid. Despite of it the matter remained

pending and no decision was taken on the same in relation to District Tehri Garhwal some such other districts. In para 15 of the writ petition, it is

specific case of the petitioners that though an identical benefit has already been extended to the institutions of Rudrapur, District Udham Singh Nagar

and they have been given the benefits of the time scale from the initial date of appointment and not from the date when the institutions were brought

within grant-in-aid.

The petitioners also gave examples of District Pithoragarh, Udham Singh Nagar, Bageswhar, Pauri, Haridwar and Chamoli etc. where identical

benefits of the grant of time sale in pursuance of the Government Order dated 12.07.2002 aforesaid was paid taking into consideration and including

the period of service rendered in the institutions for period prior to the institution being brought in grant-in-aid.

Now, issue called upon before the learned Single Judge which was to be decided was as to “whether the benefit of time scale as settled by G.O.

dated 12.07.2002 would be payable from the date when the institution was brought into grant-in-aid or it would be treated from the date of the initial

induction into the service.â€​

The arguments of learned counsel for the petitioners before the learned Single Judge was that principle of grant of the time scale, more particularly,

when the services are governed by the common set of service regulations and terms of appointment, they cannot be differently treated and cannot be

treated differently for grant of service benefit by adopting different yardsticks as the said act would be violative of Article 14 and 16 of the

Constitution of India. It is a case of the learned counsel for the petitioners that after the institution were brought into grant-in-aid the entire managerial

control, which are now being principally governed by the instructions issued by the Government authorities. There was no reason for the State

agencies as to why the benefits which were extended to 6 districts and rest of the districts in which the petitioners worked have been deprived of the

same benefits, at least cannot discriminate in any manner based on tutorial divide. Hence, action of the respondents was discriminatory, arbitrary and

violative of Article 14 & 16 of the Constitution of India

The writ petitioners filed the writ petitions for the following reliefs:

a. Issue a writ order or direction in the nature of mandamus to the respondents to grant without any delay with immediate effect the benefit of time

scale after computing their 10 years of service from the date of their initial appointment and release the benefit without any delay within a period as

stipulated by this Hon’ble Court.

b. Issue any other suitable writ order or direction which this Hon’ble Court may deem fit, just and proper under the facts and circumstances of the

case.

c. Cost of the petition be awarded in favour of the petitioners.

In the writ petition following ground have been taken:

a. Because there is no occasion or justification on the part of the Government Authorities to keep the matter with regard to grant of benefit of time

scale after completion of 10 years service as pending, particularly when the identical benefit in respect of similarly situated incumbents has already

been given in respect of six districts of the State.

b. Because the action of the Government Authorities keeping the matter as pending is wholly arbitrary and highly objectionable as this is nothing but in

fact is denial of grant of benefit accrues pursuant to the recommendation of the 5th Pay Commission.

c. Because the action of the respondents keeping this issue pending in respect of the petitioners is nothing but denial of grant of benefit of time scale

though the petitioners are similarly situated to those incumbents who are working in these six districts and are being paid the said benefit from the date

of their initial appointment.

d. Because the action of the respondents is discriminatory, arbitrary and violative of Article 14 and 16 of the Constitution of India.

The writ petition was taken up before the learned Single Judge and by the learned Single Judge by impugned judgment in the appeal dated 27th

March, 2017 allowed the writ petition and a writ of mandamus was issued directing the respondents to release the time scale of the petitioner after

including the period of service having rendered by them from the initial date of appointment. The learned Single Judge while dealing with the issue has

rightly held that the State since being the model employer and particularly employer of the welfare State cannot differentiate amongst its subject by

granting benefit to certain set of employees of one district and denying to others, despite being similarly placed.

Hence, the Court concluded that the benefit of time scale is to be considered after taking into consideration the entire length of service from the

date of initial appointment and not from the date when the institution was brought in grant-in-aid holding the action of the State to be arbitrary, the writ

petition was allowed. We are of the view that even otherwise the process of bringing an institution in grant-in-aid is administrative decision of State

which have effect when authorities decide, this is not in the control of employees. Hence, the teachers like the petitioners cannot suffer due to delayed

decision, and further more their services rendered for period prior to it cannot be rendered as a period without being provided with service benefits.

Having gone through the records of the writ petition as well as the rational attached by learned Single Judge, we are of the considered view that

the State can not in any circumstances discriminate between its employees who are identically appointed and whose services are governed by the

identical set of service rules. Hence we decline to exercise the appellate jurisdiction. Consequently, the appeals fail and are dismissed. State is

directed to comply the decision taken by the learned Single Judge.

No order as to costs.