Sujit Dey and Others vs State of Tripura and Others

P.K. Sarkar, J.—This group of writ petitions involve same question of fact and law and therefore, are decided by this common judgment.

The Petitioners are Physical Instructors in the State of Tripura and they were appointed as Physical Instructors in different schools between the period 16.6.78 and 11.6.83. They were under graduate at the time of their entry in the service, but subsequently they have passed their Degree Examination while in service. All the Petitioners acquired their B.A. degree in 1983 and thereafter. The Petitioners filed these writ petitions claiming the relief that the State Respondents may be directed to give them the scale of pay of Rs. 560-1300/- from the date of their passing the B.A. examination and also the revised pay scale of Rs. 1450-3710 w.e.f. 1.1.86. It is further stated in the petitions that the Government has extended the higher scale of pay to the Graduate Physical Instructors w.e.f. the date they have obtained their Bachelor''s degree. The Petitioners have annexed the copy of the orders with the writ petitions, Annexures-F, G, H, I and J, by which the Graduate Physical Instructors were given higher scale of pay of Rs. 560-1300/-. The Petitioners, therefore, claim that they are also entitled to the higher scale of pay of Rs. 560- 1300/-w.e.f the date they have obtained their B.A. degree. It is also stated that the Petitioners made several representations to the Government, but the State Respondents have failed to give the higher pay scale to the Graduate Physical Instructors Petitioners.

In response to the notice of motion issued by this Court, counter affidavit has been filed on behalf of the State Respondents wherein they have denied all the allegations made by the Petitioners.

It was brought to the notice of the Court that the Revision of Pay Rules of 1965 has been superseded by subsequent Revision of Pay Rules framed by the State Government and it is aiso stated that new Recruitment Rules have been framed by the Government in 1982 regarding recruitment of Physical Instructor Grade-I. It is further stated that the Petitioners rested their claim on the basis of Item No. 44 of the Revision of Pay Rules, 1965, which was followed by the Government in subsequent years. It is stated in the counter-affidavit that by subsequent revision of pay Rules the aforesaid Item 44 of 1965 Pay Rules has been superseded and the Government has taken a policy decision by a Memorandum of the Government in the Education Department No. F. 2(11-24)DSE/80(IV) dated 23rd April, 1982 stating that the persons possessing higher qualification than the required minimum prescribed for the post held by them shall not get the higher pay scale to which they might be eligible for appointment on the basis of their educational qualification. In the aforesaid Memorandum it has been made clear that the Assistant Teachers of Primary and Junior Basic Schools shall get the pay scale of Rs. 240-440/-for which the minimum educational qualification has been prescribed as School Final or equivalent and whereas Assistant Teachers of Secondaiy Schools including Senior Basic, Junior High, High and Higher Secondary Schools shall get the pay scale of Rs. 325-665/- for which the educational qualification has been prescribed as Bachelor''s Degree of a recognised University. It has been further clarified in the aforesaid Memorandum that the Assistant Teachers will get their pay in accordance with their terms of appointment. By the aforesaid Memorandum the pay of the Assistant Teachers on the basis of qualification has been discontinued. It is also stated in the counter-affidavit that the State Government has framed Recruitment Rules for the post of Physical Instructor Grade-I on 6.7.83 (Annexure-E) and according to the Recruitment Rules the Physical Instructors are entitled to get their scale of pay as prescribed in the said Rules.

Mr. B. Das, learned senior counsel appearing on behalf of the Petitioners submitted that the case decided by Full Bench of this Court and reported in 1997 (1) GLT 354 (Sabyasachi Bhattacharjee v. The State of Tripura and Ors.) will apply in full force to the facts of these cases and therefore, the Petitioners are entitled to succeed in the present cases.

Mr. U.B. Saha, learned Govt. Advocate appearing on behalf of the Respondents submitted that in Sabyasachi''s case [1997 (1) GLT 354] this Court was considering the scope of Item 44 of 1965 Revision of Pay Rules of Teachers of Secondary stage and Primary Schools,. In an earlier case the learned Single Judge held that from the language of Item 44, as it is, there was no reason to restrict the benefit of the 1965 Revision of Pay Rules as amended to the Teachers of Secondary Stage inasmuch as it simply says "Assistant Teacher (Untrained Graduate)". It was also held that the Pay Scale which has been mentioned in serial (iii) of column 3 is one which before the 1963 Rules had admittedly applied to all the teachers irrespective of whether they were in Primary or Secondaiy Schools, Serial No. 18 of the Rules has itself dealt with Trained Matriculate or Under-Graduate Untrained without making distinction between teachers of Primary or Secondary School. The 1967 amendment viewed in this context cannot be restricted to teachers in the Secondary Schools. This view of the learned Single Judge in the earlier case has been upheld by the Full Bench in Sabyasachi''s case [1997 (1) GLT 354]. The Full Bench in Para 13 of Sabyasachi''s case observed -

In our opinion, the view taken by the view of the fact that the Advocate General for the State of Tripura has himself conceded that item No. 44 itself does not indicate that the benefit is restricted to any particul category of Graduate Teachers. The learned Smgle Judge in the Second Appeal has taken that view in the good year 1979 which interpretation was prevailing for more than fourteen years and even in the year 1994, even though a challenge was made before the Supreme Court, the same was not pressed on merits and the SL Ps were got dismissed on the ground that the benefit is being extended to the Petitioners. Clearly, at the time of making of the statement, the stand of the State of Tripura was that the interpretation which had been given to item 44 by the learned Single Judge in the Second Appeal and by the Division Benches in a large number of Civil Rules later on was being extended and not contested by the State of Tripura.

The above observation is on the basis of submission of learned Advocate General and on the basis of decisions of various judgments passed by Division Bench of this Court and therefore the Full Bench did not interfere with the interpretation of Item 44 of 1965 Revision of Pay Rules.

Mr. Saha, learned Govt. Advocate submitted that Sabyasachi''s case cannot apply in the present cases on two grounds. Firstly, that the Physical Instructors are appointed in pursuance of the Recruitment Rules framed by the Government on 6.7.83. Annexure-E, and secondly, that the benefit of higher pay scale given to the teachers as well as Physical Instructors on obtaining bachelor''s degree has been discontinued by a policy decision of the Government issued by a Memo dated 23rd April, 1982, Annexure-D.

It is an admitted fact that the teachers irrespective of their posting in Primary or Secondary Head were getting higher scale of pay on the basis of their qualification that is on attaining Degree of B.A./B.Sc. or B.Com. The Assistant Teachers were given Graduate scale of pay whether they were serving in Primary Schools or in Secondary Schools. This was done 1 in accordance with the decision of the High Court as well as on the basis of 1965 Revision, of Pay Rules as amended in 1967. This benefit was given to the teachers as well as Physical Instructors upto 22nd April, 1982. Thereafter the Government has taken a policy decision by a Memorandum dated 23rd April, 1982 (Armexure-D) that the Assistant Teachers in the Primary Schools will get the pay scale of Rs. 240-440/- and the Asstt. Teachers in Secondary Schools will get the pay scale of Rs. 325-775/-. It was further clarified in the aforesaid Memorandum that the pay on the basis of qualification has been discontinued and the Assistant Teachers will get their pay against the post for which they have been appointed. Prior to the issue of the aforesaid Memorandum dated 23rd April, 1982, Annexure-D, the Government followed the policy of pay of Assistant Teachers on the basis of qualification. In the subsequent pay revisions which were made by the State Government after 1965 and 1967 Revision of Pay Rules the Government in unequivocal terms have expressed their intention to retract from the earlier principle that the Assistant Teachers acquiring the B.A., B.Sc., B.Com. Degrees would be entitled to the higher scale of pay w.e.f the respective dates of their acquiring that qualification. The position was further made clear by the State Government by a Memorandum dated 23rd April, 1982, Annexure-D to the writ petition. The Memorandum of the Government dated 23rd April, 1982, Annexure-D reads as follows:

No. F. 2(1124)-DSE/80(IV) GOVERNMENT OF TRIPURA EDUCATION DEPARTMENT (SOCIAL EDUCATION) Dated, Agartala, the 23rd April, 1982. MEMORANDUM

It has been decided by the Goveinnient that henceforth as Asstt. Teacher shall get the pay scales of the Post to which he is appointed and not the pay scale of the post to which he is eligible to be appointed on the basis of his education qualification. Accordingly, person appointed to the posts of Asstt. Teacher (Primary/Jr. Basic Schools) shall get the scale of Rs. 240-8-329-10-440/- (EB after 8th and I Sth stages) and must have the minimum educational qualification of S.F. or equivelent. Those appointed to the posts of Assistant Teachers of Secondary Schools (comprising of Sr. Basic, Jr. High, High and Higher Secondary Schools) shall get the scale of Rs. 325-15-445-20-565-25-665/- (EB after 8th and 15th stages) as the case may be, according to the terms of their appointment. For the post of Asstt. Teachers in the scale of Rs. 325-775/- the minimum education qualification required will be Bachelor''s Degree of a recognised University and for the posts of Assistant Teachers in the scale of Rs. 325-775/-, the minimum education qualification required will be a Bachelor Degree with honours or a Post Graduate Degree of a recognised University. Persons possessing higher qualification the required minimum prescribed for the posts held by them shall not get the higher scale of pay to which they might be eligible for appointment on the basis of their educational qualification as such appointment on the basis of their educational qualification as sucl). appointment will depend on the availability of post and also on the selection of the candidate for that post by the competent authority.

This will come into force with immediate effect. This shall not however, adversely effected die existinjg incumbents who may have already been allowed scales of pay according to their educational qualification and not according to the posts held by them.

This is issued with the concurrence of the Finance Department vide their U.O. No. 4948-Fin. (G) dt. 14.12.81.

(H. Mukherjee) Secretary to the Government of Tripura.

While evolving the revised pay scales in respect of different categories of Assistant Teachers in the Education Department in the aforesaid Memorandum two broad categories of Teachers were mentioned, laying do the requirement of academic qualification in their cases. It was not intended by the Government that on their acquisition of Higher academic qualification, various categories of teachers in the lower grades shall automatically be placed in the different higher grade commensurate with their academic qualification. Normally, pay scales of various category of posts in any Department are sanctioned keeping in-viewe minimum qualification required for each category of posts, besides the duties prescribed . for them. Similarly, the teaching posts lore sanctioned for various educational institutions keeping ui view the subjects and classes, the incumbents of these posts are required to teach and for that quaecific qualificaticms are prescribed in the service rule as well as the time of recruitment. For example, if a B.A.B.Ed. pass candidate with the qualifications of Matriculate candidate applies for the post of Assistant Teacher in Junior Basic Schpol and the candidate who passed B.A.B.Ed. is appointed in the service, he cannot claim higher pay scale on the basis of higher qualification and wall get the pay prescribed for tiie post of Assistant T Sacher of the Junior Basic Schools. Similarly, if a Matriculate Teacher improves his qualification during the course of service and acquires degree of B.A., he cannot claim the scale of Graduate Teacher unless he is appointed to the post of Graduate Assistant Teacher for which the minigium qualification is B.A.

It is argued by Mr. Saha, learned Govt. Advocate that different interpretations were given by the Hon''ble High Court regarding Item 18 and 44 of 1965 Revision of Pay Rules as amended in 1967. To remove the confjusion by misconstruing the intention of the Government the whole matter was examined by the State Government. As a result of the re-consideration the Government of Tripura has been pleased to clarify that the Teachers of the Education Department are not entitled to be placed in the higher scale of pay in pursuance of the subsequent revision of pay Rules and the Revision of Pay Rules, 1965 as amended in 1967. Therefore, it has been decided by the Government that the benefit given to the Assistant Teachers for giving higher scale of pay on their improving/acquiring higher qualification during the course of their service automatically has become inoperative or the benefit has been withdrawn w.e.f 23rd April, 1982 and it has been further clarified that the Assistant Teachers in the Education Department will be placed in the scale of pay of their respective categories to which they are appointed against the sanctioned post and mere possession/acquiring of higher qualification will not entitle them automatically to claim higher pay scale. Mr. Saha fairly submitted that the Physical Instructors were also given the same benefit of higher scale of pay with their acquisition ofhigherqualification till 22nd April, 1982 and the said benefit has been withdrawn from the Physical Instructors in the same manner as it was withdrawn in the case of Assistant Teachers by a Memorandum of the Government dated 23rd April, 1982, Annexure-D to the writ petition. It is further submitted by Mr. Saha, learned Govt. Advocate that after framing of the Recruitment Rules the Physical Instructors are regulated and the terms of appointment are decided in accordance with the Recruitment Rules framed in this behalf.

Mr. Das, learned senior counsel forthe Petitioners submitted that the Memorandum of the Govt, dated 23rd April, 1982, Annexure- D, should be declared as illegal and inoperative in view of the Full Bench decision in Sabyasachi''scase [1997 (1) GLT 354]. Mr. Das submitted that the present Petitioners obtained their B.A. Degree in 1983 and 1985, but they have not been given the higher scale of pay in view of the Memo, of the Government dated 23rd April 1982, Annexure-D. Mr. Das consequently submitted that in pursuance of the decision of the Full Bench in Sabyasachi''s case (supra) the Petitioners are entitled to higher scale of pay w.e.f. the date they have acquired their B.A. Degree.

In the present case it is to be decided whether the Government can retract from earlier principle that the teachers acquiring B.A. Degree would be entitled to the higher scale of pay w.e.f the respective dates of their acquiring that qualification. This question has not been decided by the Full Bench in Sabyasachi''s case reported in 1997 (1) GIT 354. The aforesaid Full Bench case is an authority in respect of giving the pay scale of Graduate Teachers irrespective of the fact whether they are serving under Primary Head or Secondary Head. The aforesaid Full Bench decision is not an authority on the question whether the Govt, can retract from earlier principle that teachers acquiring B.A. degree would be entitled to the higher scale of pay w.e.f the respective dates of their acquiring that qualification. This question has been decided by the Supreme Court in the case of Wazir Singh and Ors. v. State of Haryana and Ors. reported in AIR 1996 SC 889. In that case the teachers under the Government of Haryana were enjoying the benefit of higher scale with acquisition of hjgher degree of B.T./B.Ed., from the date of acquisition of such degree. But the aforesaid benefit was withdrawn by the Govt, of Haryana by an order dated 9.3.90. Having felt aggrieved by the aforesaid order of the Government of Haryana Wazir Singh and others filed case which went upto Supreme Court. The Apex Court held-

those teachers who have acquired B.T/-B.Ed., after 9.3.1990 are governed by the changed policy of Haryana Government dated 9.3.1990. They would not be entitled to the benefit of higher pay scale automatically land when they were not appointed against the posts for which the qualification is B.T./B.Ed.

On a plain reading of the aforesaid decision of the Apex Court it is clear that Government is competent to retract or withdraw benefit from the employees from prospective date. The decision given by the Apex Court in Wazir''s case has also been followed by the Apex Court in State of Haryana and Another Vs. Ravi Bala and Others,

Considering the facts and circumstances stated above I cannot agree with the submission made by Mr. Das, learned senior counsel for the Petitioners. I am also of the view that the Full Bench decision in Sabyasachi''s case, reportedin 1997 (1) cannot be applied in the facts and circumstances of the present cases. The Full Bench decision is no doubt an authority in respect of scale of pay of Graduate teachers irrespective of the fact whether they are serving in the Primary Head or Secondary Head. but in the present case the question before me is whether the Government can retract from the benefit which was once given to the employees. Following the judgment of the Apex Court 1 have no hesitation to hold that the Government is competent to withdraw the benefit of any employee which was extended earlier with prospective effect.

Mr. Das, learned senior counsel for the Petitioners drew my attention to the orders of the Government at Annexures-F, G, H, I and J of the writ petitions. It appears from Annexure-F that one Shri Nirmal Kumar Chakraborty, Physical Instructor was given higher scale of pay w.e.f 21.12.70, i.e. the date of his passing B.A., Part-II examination, 1970. From Annexure-G it appears that four Physical Instructors as mentioned in the aforesaid order, Annexure-G, were given the higher scale of pay who passed their B.A. degree examination between 5.5.72 to 13.2.74. From Annexure-H it appears that one Shri Pradip Kumar Das Gupta, Physical Instructor was given higher scale of pay w.e.f. 21.12.1973 on which he passed his B.A. Part-II examination, 1972. From Annexure-1 it appears that one Shri Alok Mukherjee, Physical Insitructor was given higher scale of pay w.e.f. 31.3.82, i.e. the date on which he acquired his B.A. degree. On a perusal of the aforesaid Annexures (Annexures-F, G, H and I), it appears that all thePhysical Instructors who passed their B.A. examination prior to Memorandum of the Govt, dated 23rd April, 1982, were given the higher scale of pay with the acquisition of their higher qualification. From the aforesaid Annexures, it is clear that they have passed their B.A. examination prior to the policy adopted by the Government in its Memo, dated 23rd April, 1982, Annexure-D. Therefore, it cannot be said that these Physical Instructors were given higher scale of pay after the Government has taken a policy decision that higher scale of pay will not be admissible to the Physical Instructors even though they acquire higher qualification during service. Annexure-J is an offer of appointment in the post of Physical Instructor which has been issued by the Government on 25.3.83. These Physical Instructors were appointed in the scale of pay of Rs. 560/-1300/-. Mr. Saha learned Govt. Advocate submitted that these Physical Instructiors were appointed as Physical Instructor Grade-I in accordance with the draft Recruitment Rules of 1983. It is also submitted by learned Govt. Advocate that the Recruitment Rule was published on 6.7.83. But these appointments were made prior to the framing of the Recruitment Rules and they were appointed as per provisions made in the draft Recruitment Rules. It is also submitted by Mr. Saha that the Physical Instructors Grade-I who were appointed in pursuance of the Order of the Government dated 25.2.83, Annexure-J will be regulated as per terms of their appointment and the Petitioners cannot claim that they are similarly situated with the persons appointed as Physical Instructor Grade-I, Annexure-J.

There is sufficient force in the submission of Mr. Saha, learned Govt. Advocate. It appears that none of the Physical Instructors who acquired higher qualification while in service have been granted the higher scale of pay on and after 23.4.82, i.e. the date on which the Government has retracted the policy decision of giving higher scale of pay on attaining higher qualification. Since all the Petitioners obtained their higher qualification of B.A. degree after the policy decision of the Government dated 23.4.82, Annexure-D, I am of the view that they would not be entitled to the benefit of higher scale of pay automatically, specially when they have not been appointed as Physical Instructor Grade-I.

Having regard to the facts and circumstances stated above and after hearing the learned Counsel of both the parties, I am clearly of the view that there is no merit in the present writ petitions and these are liable to be dismissed. Accordingly, all the writ petitions are dismissed. But under the facts and circumstances I make no order as to costs.