Nafr High Court
Case Details
Page 1 of 16 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 4284 of 2016 Reserved on : 09.05.2025 Delivered on : 28.07.2025 Shri Shivchandra Saha S/o Shri Gosai Saha, Aged 55 Years Working As Upper Division Teacher Mata Rukmani Kanya Ashram, Dimrapal, Distt. Bastar Chhattisgarh, Chhattisgarh versus --- Petitioner 1 - State Of Chhattisgarh Through Its Secretary, Scheduled Caste And Scheduled Tribes And Backward Classes Welfare Department, D. K. Bhawan, Raipur Chhattisgarh, Chhattisgarh 2 - Collector Tribal Department, District Bastar, Jagdalpur Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh 3 - Mata Rukhmani Seva Sansthan, Through Its Secretary, Mata Rukhmani Seva Sansthan Dimarapal, District Bastar Chhattisgarh, District : Bastar(Jagdalpur), Chhattisgarh --- Respondents and WPS No. 6196 of 2021 Shiv Chandra Sah S/o Shri Gosai Sah Aged About 56 Years Resident Of Mata Rukhmani, Kanya Ashram, Dimrapal District Bastar Chhattisgarh ---Petitioner Versus 1 - State Of Chhattisgarh Through Secretary, Department Of Education, Mahanadi, Bhawan, Mantralaya New Raipur. District Raipur Chhattisgarh 2 - Director, Directorate Of Chhattisgarh Public Instruction Indravati Bhawan, Naya Raipur, District Raipur. Chhattisgarh 3 - District Education Officer, Jagdalpur, District Bastar, Chhattisgarh 4 - Secretary / Chairman Mata Rukhmani Kanya Ashram Dimrapal, District Bastar, Chhattisgarh --- Respondents ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.07.28 16:50:00 +0530 Page 2 of 16 For Petitioner : Mr. Vinod Deshmukh, Advocate For State : Mr. Kishan Lal Sahu, Dy. Government Advocate and Mr. Ajay Kumrani, Panel Lawyer For Respondent No. 3 : Mr. Keshav Dewangan, Advocate Hon'ble Shri Narendra Kumar Vyas, J. CAV ORDER 1. WPS No. 4284/2016 has been filed by the petitioner assailing the order dated 11/12/2009 (Annexure P/1) issued by respondent No. 1 and memo dated 19/01/2010 issued by respondent No. 3 by which the representation preferred by the petitioner for grant of revised pay scale has been rejected on the ground that the claim of the petitioner shall
Legal Reasoning
be considered after decision of this Court in WPS No. 7557/2007. The petitioner is also seeking benefit of revised pay scale as per the recommendation of 5th Pay Commission with effect from 01/01/1996 with all arrears with interest. 2. WPS No. 6196/2021 has been filed by the petitioner assailing the order dated 13/09/2021 (Annexure P/1) passed by respondent No. 2 by which representation of the petitioner for allowing him to continue his service with all consequential benefits and quashing of the termination order dated 10.02.2018. 3.
Decision
Since common facts are involved in both the writ petitions, they are heard analogously and are being disposed of by this common order. To avoid repetition, this Court has taken into consideration the facts which are relevant for adjudication of both the writ petitions which read as under:- A) The petitioner was initially appointed as Sanchalak/Upper Division Clerk in Mata Rukmani Adiwasi Kanya Ashram/ Page 3 of 16 respondent No. 3 on 01.04.1995 which is a Government aided institution in the pay scale of Rs. 740/-. The service condition of the teaching and non-teaching employees are governed by the Madhya Pradesh/ Chhattisgarh Ashaskiya Shikshan Sanstha (Anudan Ka Pradaya) Adhiniyam, 1978 (for short “the Adhiniyam, 1978”). It is the case of the petitioner that since his inception in the service, he is getting salary of Rs. 1421/- without any annual increment. It is also case of the petitioner that similarly situated employees who were appointed along with the petitioner namely Smt. Mausami Bhute, Suryakant Dewangan, Smt. Lalita Kashyap, Kalyan Prasad Tandey, Smt. Rekha Jaiswal, Smt. Buly Kashyap, Vipin Kumar Tyagi, Smt. Sewati Tiwari, Smt. Asha Singh, Ku. Babani Sen Gupta & other employees are getting more salary than the petitioner as per the current pay scale fixed by the State Government to the aided institution whereas the petitioner is receiving total salary of Rs. 1421/- only without any increment. B) It is further contended that earlier the petitioner had filed petition along with other persons which is registered as W.P. No. 1481/2000 against the order dated 27/01/2000 whereby they have been informed that the petitioner’s service would be terminated w.e.f. 29/02/2000 on the count of irregular appointment as he was overage at the time of securing the appointment. This Court stayed the said order of termination and in pursuance of the interim order passed by this Court, the petitioner and employees whose appointments were in the Page 4 of 16 cloud, continued in the employment. Thereafter, this Court allowed the petition vide order dated 02.01.2006 and quashed the order dated 27.01.2000 on the count that no enquiry has been conducted to prove the allegations leveled against the petitioner and other employees of the institution. C) During pendency of the said writ petition, the petitioner along with other employees moved an interim application for grant of salary wherein this Court had directed to pay the salary to the employees/petitioner, accordingly, the authorities have released the salary to the said employees including petitioner as per recommendation of Chowdhary Pay Commission i.e. Rs. 740+92% DA total salary Rs. 1421/- and the petitioner as on date is getting the said old pay scale with permissible dearness allowance. D) It is also case of the petitioner that the petitioner has filed petition before this Court which is registered as W.P. No. 7575/2006 praying for grant of salary as per the recommendation of 5th Pay Commission as per the law laid down by this Court in case of Smt. A. Lall V/s. State of Chhattisgarh & Others [W.P. No. 4108/2005]. This Court vide order dated 10.11.2009 has directed respondents No. 1 & 2 to decide the representation of the petitioner in terms of the law laid down by this Court in case of Smt. A. Lall (supra). In pursuance of direction issued by this Court in Smt. A. Lall (supra), the State Government is paying the salary according to the revised pay scale to most of the teachers/employees who are working with Page 5 of 16 respondent No. 3 institution except the petitioner. As per direction of this Court, the petitioner preferred representation before respondent No. 3 on 26.11.2009 which has been rejected holding that the case of the petitioner would be considered after decision of W.P. (S) 7557/2007 filed by the petitioner wherein he has challenged the show cause notice dated 09.02.2007 issued to him for termination of service as well as charge-sheet issued to him alleging that he has obtained the employment after completion of 31 year 01 month & 10 days which is more than the maximum age prescribed for appointment under the rules and the said appointment was not approved by the competent authority. This amounts to misconduct under Rule 3 of Chhattisgarh Civil Services (Conduct) Rules, 1965 as applicable for the employees working in the aided institutions. This Court vide order dated 29.01.2008 directed the respondents not to take any coercive steps against the petitioner. The said petition was disposed off by this Court vide order dated 08.01.2018 granting liberty to all the petitioners to file reply to the charge- sheet and the same shall be considered by the competent authority/ disciplinary authority in accordance with law and to conclude the departmental enquiry pending since 19.09.2007. On the above factual matrix, the petitioner has filed WPS No. 4284/2016 claiming pay scale along with other employees/teachers working with respondent No. 3. E) After disposal of WPS No. 7557/2007 on 08.01.2018, the respondents proceeded with the enquiry and vide order dated Page 6 of 16 10.02.2018 (Annexure R/2) has terminated the services of the petitioner. Thereafter, the petitioner has preferred representation before Director, Public Instruction who vide order dated 13.09.2021 has rejected the same by recording its finding that the petitioner is resident of Bihar, District- Saharsa and certificate of all the education qualification is of State of Bihar, therefore, he cannot be original domicile of State of Chhattisgarh/Madhya Pradesh. It has also been recorded its finding that as per the circular issued by erstwhile State of Madhya Pradesh on 21.01.1994, three years relaxation was granted in the Government service to the domicile candidate of State of Madhya Pradesh and upper age i.e. 33 years was fixed for the candidate who are domicile of the State of Madhya Pradesh whereas the petitioner is resident of State of Bihar, therefore, he cannot claim three years age relaxation granted for the domicile of State of Madhya Pradesh and he has acquired appointment by misleading these facts, accordingly, the order of termination from service has been passed. The impugned order dated 13.09.2021 (Annexure P/1) has been challenged by the petitioner in WPS No. 6196/2021 by which his representation against termination from service on 10.02.2018 has been rejected by respondent No. 2 and also prayed for reinstatement with all consequential benefits. F) In WPS No. 4284/2016, the petitioner has assailed the order dated 11/12/2009 (Annexure P/1) issued by respondent No. 1 and memo dated 19/01/2010 (Annexure P/2) issued by Page 7 of 16 respondent No. 3 by which the representation preferred by the petitioner for grant of revised pay scale has been rejected on the count that the claim of the petitioner shall be considered after decision passed by this Court in WPS No. 7557/2007. The petitioner is also seeking benefit of revised pay scale recommended by 5th Pay Commission w.e.f. 01/01/1996 with all arrears of salary with interest. 4. The respondents have filed their return denying the allegations made in the writ petitions contending that the petitioner cannot claim parity with the other employees of the institutions who are getting pay scale with the other employees as the petitioner’s appointment was not in accordance with law and other employees who are being granted pay scale by the respondents, are eligible to appoint as per the qualification as well as age and other required conditions for appointment with respondent No. 3. It has also been contended that the principle of ‘equal pay for equal work’ is not applicable in the present facts of the case. So far as termination of the petitioner, it has been contended that the termination order passed against the petitioner is legal and justified as the petitioner was not fulfilling the required condition for employment as he was over aged at the time of getting initial appointment. 5. Learned counsel for the petitioner reiterating the submission made in the petitions would submit that the denial of regular pay scale at par with other employees/ teachers working with respondent No. 3 is violative of Article 13 & 14 of the Constitution of India. So far as termination case, he would submit that the petitioner has completed 26 Page 8 of 16 years of service and his family members are dependable on the earning of the petitioner, therefore, termination order passed by the respondent No. 3 and affirmed by respondent No. 2 is harsh and disproportionate to the misconduct. He would further submit that his appointment is not illegal but in the worst view of the matter, it may be a irregular appointment as the petitioner was having the requisite qualification of appointment but he was over aged by 1 year, 1 month and 10 days. He would further submit that in the recruitment rules, no maximum age has been prescribed, therefore, it cannot be held that he was over-aged. Thus, he would pray for allowing the petitions and would pray for reinstatement with full back-wages. He would further submit that the petitioner’s case does not fall within category of tented candidate as held by Hon’ble the Supreme Court in case of State of West Bengal Vs. Baishakhi Bhattacharya [2025 INSC 437] and would refer to paragraph 47 of the judgment. To substantiate his submission, he would refer to the judgment of Hon’ble the Supreme Court regarding termination in case of Buddhi Nath Chaudhary Vs. Abhi Kumar & others [(2001) 3 SCC 328], M.D. Jamil Ahmed Vs. State of Bihar [(2016) 12 SCC 342], State of Orissa Vs. Mamta Mohanty [(2017) 1 SCC 148] and regarding parity/equal pay for equal work in case of State of Punjab & others Vs. Jagjit Singh & others [(2017) 1 SCC 148]. 6. On the other hand, learned counsel for the State as well as for respondent/aided institution would support the impugned orders and would submit that the petitioner was continued in the service in view of the interim order passed by this Court and on the basis of interim Page 9 of 16 order, he cannot claim that the termination order was passed after 26 years and would pray for dismissal of both the writ petitions. 7. I have learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 8. From the submissions made by the parties, the point emerged for determination of this Court is:- “Whether the petitioner is entitled to be reinstated in service with full back-wages and entitled to get salary at par with the teachers/employees working in the institution?” 9. So far as allegation leveled against the petitioner that he is not the domicile of the State of Madhya Pradesh when he has obtained the service on 01.04.1995 with respondent No. 3 whereas the circular dated 31.01.1994 specifically provides that the relaxation of three years will be applicable to the domicile of the State of Madhya Pradesh only. The petitioner has also not been able to deny that he was not over-aged at the time of securing the employment, therefore, there is no dispute about the fact that at the time of appointment, the petitioner was over-aged for 1 year, 1 month & 10 days. The record of the case would show that the petitioner was granted appointment though he was ineligible, therefore, his appointment was not in accordance with law from inception and he was continued in service in view of the interim order passed by this Court. As such, it cannot be held that the termination order was passed after 26 years of appointment. This submission made by learned counsel for the petitioner is liable to be rejected. Page 10 of 16 10. Now this Court has to ascertain whether appointment of an overage candidate can be allowed to be continued. The service condition of the petitioner is governed by the Adhiniyam, 1978 and the rules made therein. Section 6 of the Adhiniyam, 1978 clearly provides prohibition on creation of posts, appointment of the staff and termination of service without approval from the competent authority. Section 6 of the Adhiniyam, 1978 reads as under:- “Section 6-Prohibition on creation of posts and appointments of staff and termination of services- Notwithstanding anything contained in any law for the time being in force or any rules, regulations, bye-laws, statutes or regulations made thereunder,- (a) on and from the appointed date,- (i) no post of a teacher or other employee shall be created [***] [The words 'except in such scale of pay as the State Government, from time to time, determine', omitted by Madhya Pradesh Act No. 26 of 2000, Section 6 (w.e.f. 18-8-2000).] and no teacher or other employee shall be recruited without following the procedure prescribed in this behalf; (ii) the teachers or employees shall have such qualifications and experience as may be prescribed; and (iii) [no teacher or other employee shall be dismissed or removed from service or his services terminated except by an order passed after following such procedure as may be prescribed] [Substituted by M. P. Act No. 24 of 1981 (w.e.f. 20-7- 81).]: Provided that a teacher or other employee may prefer an appeal against his dismissal, removal or termination from service to an appellate authority as the State Government may, by notification, specify within thirty days from the date of receipt of the order by him and such authority may after holding such enquiry as it may deem fit in the manner prescribed, may either set aside or confirm or modify the said order and pending the disposal of appeal, the appellate authority may also stay the operation of order on such grounds, as it thinks fit; (iv) no teacher or other employee shall be placed under suspension for more than ninety days without such prior approval of the competent authority: Provided that the competent authority shall give its approval only after holding such enquiry and within such time as may be prescribed; Page 11 of 16 (b) the competent authority may on an application made within thirty days from the appointed date by a teacher or an employee of an institution, who has been dismissed or removed from service or whose service has been terminated by the management of an institution at any time on or after the 17th November, 1977, after giving the management of the institution and the persons affected by such dismissal, removal or termination a reasonable opportunity of being heard and after conducting such enquiry as it may deem fit, declare the dismissal, removal or termination, as the case may be, to be void and direct the management of the institution to reinstate such teacher or employee in service; (c) the competent authority shall review all the cases of appointment of teachers and other employees made during the period commencing from the 17th November, 1977 and ending on the date of commencement of this Act and, if it, after giving the management of the institution and the person concerned a reasonable opportunity of being heard, finds that the appointments were made in anticipation of this Act, it may by an order in writing for reasons to be stated therein disapprove such appointment.” 11. From perusal of Section 6 of the Adhiniyam, 1978, it is quite vivid that that the appointment will be made only when it is approved by the competent authority. In the present case, no approval has been granted by the competent authority, therefore, it cannot be held that after appointment of the petitioner, necessary condition of the appointment i.e. approval from the competent authority, has been fulfilled which makes petitioner’s appointment as illegal appointment due to over-aged. The maximum age prescribed under the recruitment procedure falls within the ambit of essential condition of appointment and if there is any lacking in the condition including overage makes the appointment of the candidate as illegal appointment, therefore, I am of the view that the termination order passed by the respondent/ institution on 10.02.2018 w.e.f. 29.02.2000 is liable to be modified to the extent that the termination dated 10.02.2018 cannot be given retrospective effect by the respondent, therefore, the termination order will be made effective from 10.02.2018 only when it has been issued. Page 12 of 16 Accordingly, the Writ Petition bearing WPS No. 6196/2021 is liable to be dismissed. 12. So far as WPS No. 4284/2016 is concerned, it is quite vivid that the petitioner was appointed as Sanchalak/Upper Division Clerk in Mata Rukmani Adiwasi Kanya Ashram/ respondent No. 3 on 01.04.1995 and he was continued in discharging his service at par with the other teachers/employees working with the institution though approval of appointment as per provisions of Section 6 of the Adhiniyam, 1978 was pending with the competent authority. Thereafter, the respondents have issued notice on 19.09.2007 (Annexure P/14) for departmental enquiry along with the charge-sheet and this Court has granted the interim protection on 29.01.2008 in WPS No. 7557/2007 and with the aid of the interim order passed by this Court till regular completion of enquiry, termination order has been passed by the respondents. It is also not case of the respondent that in view of the interim order passed by this Court, the petitioner was not discharging the similar duty which has been assigned to similar employees whose appointment is not in question. 13. It is also not in dispute that the petitioner is not having all the essential conditions for appointment except that he was overage which cannot be held to be so fatal to deny him the salary at par with other employees till he was removed from service on 10.02.2018 only and since he has discharged the duty assigned to him at par with the other employees, therefore, he is entitled to get equal pay on the principle of ‘equal pay for equal work’ upto 10.02.2018. 14. The law with regard to principle of ‘equal pay for equal work’ has come Page 13 of 16 up for consideration before Hon’ble the Supreme Court in case of Jagjit Singh (supra) wherein it has been held in paragraphs 57, 58, 60 & 61 as under:- “57. There is no room for any doubt, that the principle of ‘equal pay for equal work’ has emerged from an interpretation of different provisions of the Constitution. The principle has been expounded through a large number of judgments rendered by this Court, and constitutes law declared by this Court. The same is binding on all the courts in India, under Article 141 of the Constitution of India. The parameters of the principle, have been summarized by us in paragraph 42 hereinabove. The principle of ‘equal pay for equal work’ has also been extended to temporary employees (differently described as work-charge, daily-wage, casual, ad-hoc, contractual, and the like). The legal position, relating to temporary employees, has been summarized by us, in paragraph 44 hereinabove. The above legal position which has been repeatedly declared, is being reiterated by us, yet again. 58. In our considered view, it is fallacious to determine artificial parameters to deny fruits of labour. An employee engaged for the same work, cannot be paid less than another, who performs the same duties and responsibilities. Certainly not, in a welfare state. Such an action besides being demeaning, strikes at the very foundation of human dignity. Any one, who is compelled to work at a lesser wage, does not do so voluntarily. He does so, to provide food and shelter to his family, at the cost of his self respect and dignity, at the cost of his self worth, and at the cost of his integrity. For he knows, that his dependents would suffer immensely, if he does not accept the lesser wage. Any act, of paying less wages, as compared to others similarly situate, constitutes an act of exploitative enslavement, emerging out of a domineering position. Undoubtedly, the action is oppressive, suppressive and coercive, as it compels involuntary subjugation. xxxx xxxx xxxx xxxx 60. Having traversed the legal parameters with reference to the application of the principle of ‘equal pay for equal work’, in relation to temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like), the sole factor that requires our determination is, whether the concerned employees (before this Court), were rendering similar duties and responsibilities, as were being discharged by regular employees, holding the same/corresponding posts. This exercise would require the application of the parameters of the principle of ‘equal pay for Page 14 of 16 equal work’ summarized by us in paragraph 42 above. However, insofar as the instant aspect of the matter is concerned, it is not difficult for us to record the factual position. We say so, because it was fairly acknowledged by the learned counsel representing the State of Punjab, that all the temporary employees in the present bunch of appeals, were appointed against posts which were also available in the regular cadre/establishment. It was also accepted, that during the course of their employment, the concerned temporary employees were being randomly deputed to discharge duties and responsibilities, which at some point in time, were assigned to regular employees. Likewise, regular employees holding substantive posts, were also posted to discharge the same work, which was assigned to temporary employees, from time to time. There is, therefore, no room for any doubt, that the duties and responsibilities discharged by the temporary employees in the present set of appeals, were the same as were being discharged by regular employees. It is not the case of the appellants, that the respondent-employees did not possess the qualifications prescribed for appointment on regular basis. Furthermore, it is not the case of the State, that any of the temporary employees would not be entitled to pay parity, on any of the principles summarized by us in paragraph 42 hereinabove. There can be no doubt, that the principle of ‘equal pay for equal work’ would be applicable to all the concerned temporary employees, so as to vest in them the right to claim wages, at par with the minimum of the pay-scale of regularly engaged Government employees, holding the same post. 61. In view of the position expressed by us in the foregoing paragraph, we have no hesitation in holding, that all the concerned temporary employees, in the present bunch of cases, would be entitled to draw wages at the minimum of the pay-scale (- at the lowest grade, in the regular pay- scale), extended to regular employees, holding the same post.” 15. Considering the law laid down by Hon’ble the Supreme Court in Jagjit Singh (supra), facts of the case and also considering the fact that the petitioner was eligible for appointment except the age bar and has also discharged the similar work at par with the other employees whose appointment was not subject matter of challenge, as such, I am of the view that the petitioner is entitled to get equal pay for equal work at par with the employees who were discharging similar work and having Page 15 of 16 necessary and requisite qualification for the appointment on the post of Upper Division Teacher till he was removed from service. 16. The record of the case would show that the petitioner has filed this petition before this Court on 24.08.2016 whereas he has claimed the regular pay scale at par with other teachers from his initial appointment i.e. 01.04.1995. Considering the fact that the grant of pay scale is continuous cause of action as held by Hon’ble the Supreme Court in case of Rushibhai Jagdishchandra Pathak Vs. Bhavnagar Municipal Corporation [(2022) 18 SCC 144] wherein it has been held in paragraph 15, 16 & 19 as under:- “15. The aforesaid ratio in Tarsem Singh (supra) has been followed by this Court in State of Madhya Pradesh and Others v. Yogendra Shrivastava14 and Asger Ibrahim Amin v. Life Insurance Corporation of India. 16. In the facts of the present case, it is accepted that the respondent Corporation had accepted the interpretation rendered by the High Court of Gujarat to the Scheme whereby the appellants, on financial upgradation, would be entitled to the higher grade pay- scale of the next promotional post, which is Rs.5,000-8,000/- in the present case. As noted above, the impugned judgment of the Division Bench accepts the said position and grants the appellants the said pay-scale but restricts the benefit from the date of the judgment of the Single Judge in the Writ Petitions filed by the appellants, that is, with effect from 31 st July 2018. The Division Bench should not have taken the date of the decision/judgment of the Single Judge for grant of the said benefit in view of the decision and ratio in Tarsem Singh (supra) which has been followed in several other decisions. That apart, the date of the decision of the Single Judge is a fortuitous circumstance. Only the date of filing of the writ petition is relevant while examining the question of delay and laches or limitation. The appellants would, in consonance with the case law referred to above, be entitled to the arrears for three years before the date of filing of the Writ Petitions. xxxx xxxx xxxx xxxx 19. Recording the aforesaid, we partly allow the present appeals with a direction that the appellants would be entitled to arrears in Page 16 of 16 the pre-revised pay-scale of Rs.5,000-8,000/- for three years prior to the date of filing of the Writ Petitions along with interest at the rate of 7% per annum with effect from 1 st September 2017. The arrears, with interest, would be paid within a period of four months from the date of pronouncement of this judgment. A computation sheet/statement of accounts on the basis of which payment is made by the respondent-Corporation shall be furnished to the appellants. The impugned judgment is, accordingly, partly set aside and the Writ Petitions filed by the appellants would be treated as allowed in the aforesaid terms. There would be no order as to costs.” 17. In view of the law laid down by Hon’ble the Supreme Court in case of Rushibhai Jagdishchandra Pathak (supra), the petitioner is entitled to get the difference of pay scale prior to three years from the date of filing of this writ petition i.e. 24.08.2016 till he was removed from service on 10.02.2018. 18. The respondents are directed to fix the pay scale of the petitioner notionally and arrears of difference of pay shall be paid to the petitioner from 24.08.2013 till he was removed from service on 10.02.2018 with 7% interest, within three months from the date of receipt of copy of this order. 19. Accordingly, WPS No. 4284/2016 which has been filed by the petitioner for grant of revised pay scale claiming parity, is partly allowed to the extent indicated hereinabove and WPS No. 6196/2021 which has been filed by the petitioner for continuing his service with all consequential benefits by quashing of the termination order dated 10.02.2018, is dismissed. 1. Bhumika / Arun Sd/- (Narendra Kumar Vyas) Judge