High Court
Case Details
WP(C) 115/2012 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY JUDGMENT AND ORDER(ORAL) Heard Mr. S.K. Medhi, learned counsel appearing for the petitioners. The Stand ing Counsel, Finance, Mr. B. Gogoi and the Standing Counsel, Education Mr. A. De ka appear for the respondents. 2. The petitioners are Subject Teachers of Govt. Higher Secondary Schools o f Assam and are encadred as Class-I Jr. in the Assam School Service. The Subjec t Teachers in Govt. Higher Secondary Schools are appointed on recommendation by the Assam Public Service Commission (hereinafter referred to as (cid:28)the APSC (cid:29)). Th ey challenge the report of the Pay Anomaly Committee (Annexure- C), whereby the Committee rejected the petitioners’ claim for upgradation from P ay Band-3 to Pay Band-4, as was done for similar posts, under the 6th Pay Commis sion report. 3. The Assam Govt. through the Govt. notification dated 04.02.2010 (Annexur e-A), notified the new pay structure for the government employees wherein the sy stem of running Pay Band-1 to Pay Band-4 with corresponding Grade Pay was notifi ed. Under the new pay structure, 30 separate pay scales spread across 5 Pay Ban ds were provided with corresponding pay for each pay band. Through this notific ation at point no.37, the Govt. has upgraded to Pay Band-4, the pay structure of the APS Jr., DTOs, ACS, Superintendent of Taxes, Superintendent of Excise, ARCS , Instructors of Forest College, Botanist and Labour Officers. The correspondin g pay band of these category during the 3rd Pay Commission, 4th Pay Commission a nd 5th Pay Commission were similar to the petitioners. But in the Assam Service s (Revision of Pay) Rules,2010, (hereinafter referred to as the (cid:28)ROP Rules, 201 0 (cid:29)) published in the Assam Gazette on 04.02.1010, the Subject teachers of Govt. Higher Secondary Schools were left out from ugradation benefits to Pay Band-4. 4. Mr. S.K. Medhi, learned counsel submits that until the 5th Pay Commissio n, the petitioners’ pay scale was Rs.4300-11025, which was at par with the Asstt . Instructors of Forest College as well as Asstt. Registrars of Co-operative Soc ieties etc. and yet while pay upgradation was granted to employees of similar st atus, the Subject Teachers of the Govt. Higher Secondary Schools were kept at th e lower Pay Band-3. The petitioners contend that there is no intelligible diffe rence between those who have been upgraded to Pay Band-4 and accordingly discrim ination in pay structure is alleged by the learned advocate. 5. The reason for rejection of the pay upgradation incorporated at Sl. No.4 (Annexure-C) in the Pay Anomaly Committee’s report is contended to be irrationa l and Mr. Medhi projects that since the petitioners too are recruited through co mpetitive examination conducted by the APSC, there is no justification to refuse them the upgradation benefits, which was granted for the other similar category colleagues, like Asst. Instructors of Forest College, Asstt. Registrars of Co-o
Legal Reasoning
perative Societies and Medical Officers of Ayurvedic Colleges. 6. However, Mr. A. Deka, Standing Counsel, Education submits that the Direc torate of Secondary Education is not competent to decide on pay upgradation. How ever, the representation received from the Assam Govt. Higher Secondary Subject Teachers Association (PGT) was forwarded by the Directorate for consideration of the Government. But no specific stand on merit is taken by the Respondent No.3 . 7. The Under Secretary in the Finance (PRU) Department has filed a counter affidavit on behalf of the Respondent No.1 and Mr. B. Gogoi, on the basis of the averments in the affidavit submits that other employees who were recruited thro ugh Combined Competitive Examination of the APSC were considered for upgradation . But on granting of pay upgradation benefit to the Ayurvedic Medical Officers, the Standing Counsel projects that their pay was upgraded to Pay Band-4 on the b asis of the recommendation of the Pay Anomaly Committee. The Finance Department allowed that equalizing of pay of all posts recruited through Combined Competit ive Examination conducted by the APSC as was recommended by the Pay Anomaly Comm ittee and on that basis, pay upgradation was granted for certain categories, lik e Ayurvedic Medical Officers who were earlier at par with the petitioners, in th e previous pay structures. 8. The respondents try to justify different treatment for the Subject Tea chers of the Govt. Higher Secondary Schools by contending that they are not recr uited through Combined Civil Service Examination. But this justification in my view cannot be considered to be rational inasmuch as Asstt. Lecturers of Forest College, Botanists of Forest College and Ayurvedic Medical Officers are also not recruited through Civil Service Examination conducted by the APSC and yet they were considered for pay upgradation. 9. Moreover, under the ROP Rules, 2010, although previously the above categ ories of Govt. employees were bracketed in the same scale of pay in the 3rd, 4th & 5th Pay Commissions, the 485 Subject Teachers serving in 31 Govt. Higher Seco ndary Schools in Assam, after being selected by the APSC are being ignored. It may be noted that Subject Teachers are recruited by observing all the codal form alities as is usually done by the common recruitment authority i.e. APSC for Civ il Service Officers. Therefore, the process of recruitment can not be a distingu ishing factor for denying pay parity to the petitioners, only because they are n ot Civil Service Officers who enter service through Combined Competitive Civil S ervice Examination. As is earlier recorded the petitioners are also recruited th rough Competitive Examination conducted by the APSC and the process of recruitme nt is substantially same for the petitioners and others recruited through Combin ed Civil Service Examination. Therefore the differential treatment for the peti tioners on the basis of their mode of recruitment vis-à-vis others who were gran ted pay upgradation, is declared to be irrational and unjustified. 10. The pay structure applicable since 1983 to 2006 prior to the ROP Rules, 2010 demonstrates that several categories of employees were bracketed in the sam e pay scale as the Subject teachers of Govt. Higher Secondary Schools until the revised pay structure notified by the ROP, 2010. The following chart will demons trate the precise position for 9 categories of employees, who had the same pay s cale as the petitioners until 2006:- Name of the post ion Scale of pay 1989 sed Scale of Pay Bhaskar Baruah Committee ttee) 2006 4th Pay Commiss The Revi Revised Pay Scale (Cabinet Commi 3rd Pay Commission Scale of pay 1983 5th Pay Commission Existing Scale of pay 1996 PB4. Rs.12000-40000 Grade Pay Rs.5400 Rs.1785-4200 Rs.4300-11025 PB3. Rs.8000-350 Rs.850-1775 APS(Jr.DSP) 00 ACS(SUPERINTENDENT OF TAXES) 11025 SUPDT. OF EXCISE 8000-35000 Grade Pay 5100 DTO PB3. Rs.8000-35000 Rs.800-1700 Pay 5100 Rs.850-1775 Rs.1785-4200 Rs.4300-11025 ASS Class-I (Jr.) (Govt. Subject Teacher) 775 PB3. Rs.8000-35000 Grade Pay 5100 LABOUR OFFICER 00 Grade Pay 5100 A.I. (Lecturer) OF FOREST COLLEGE 11025 e Pay Rs.5400 BOTANIST OF FOREST COLLEGE Rs.4300-11025 000 Grade Pay PB3. Rs.8000-35000 Grade Pay 5100 Rs.5400 Rs.850-1775 Rs.850-1775 Rs.1785-4200 Rs.4300- PB4. Rs.12000-40000 Grade Pay Rs.5400 Rs.4300-11025 Rs.1785-4200 PB4. Rs.12000-40000 Grade Pay Rs.5400 Rs.4300-11025 PB3. Rs.8000-35000 Grade PB3. Rs. Rs.1735-4075 PB4. Rs.12000-40000 Grade Pay Rs.5400 PB3. Rs.8000-35000 Grade Pay 5100 Rs.850-1 Rs.1785-4200 PB4. Rs.12000-40000 Grade Pay Rs.5400 Rs.4300-11025 PB3. Rs.8000-350 Rs.850-1775 Rs.1785-4200 Rs.4300- PB4. Rs.12000-40000 Grad PB3. Rs.8000-35000 Grade Pay 5100 Rs.850-1775 Rs.1785-4200 PB4. Rs.12000-40 ARCS Rs.850-1775 Pay 5100 Rs.1785-4200 PB4. Rs.12000-40000 Grade Pay Rs.4300-11025 PB3. Rs.8000-35000 Grade Rs.5400 11. But when the revised pay scale was brought into effect under the ROP Rul es, 2010 as can be seen from the above chart, the Subject Teachers of Govt. High er Secondary Schools were placed at Pay Band-3, whereas all the other categorie s were placed at Pay Band-4 with scale of Rs.8000-35000 with Grade Pay of Rs.510 0/-. Therefore, it is clear that all the 9 categories of employees who were hith erto treated at par with the petitioners were placed in the Pay Band-4 with Rs.1 2000-40000 and Grade pay of Rs.5400/- p.m. 12. But it is obvious that the differentiation cannot be discriminatory and must have a rational basis for it to be legally acceptable. Since it is already held that mode of recruitment cannot be the distinguishing factor, unless other acceptable principles must be presented for treating them as a separate class. But no other feature is indicated by the respondents and therefore merely becau se Subject Teachers are not recruited through Combined Civil Services Examinatio n, they cannot be treated differently from others who were treated similarly sin ce 1983. 13. That apart, upgradation of Pay Band considered for the Asstt. Instructor s of Forest College, Botanists of Forest College, Ayurvedic Medical Officers wh o too are non Civil Service Officers clearly suggest that the petitioners have b een discriminated. Therefore, I am of the view that direction should be issued t o the departmental authorities to consider pay upgradation for the Subject Teach ers of Govt. Higher Secondary Schools. 14. However, since the issue has financial implication and formal procedure will have to be followed, the nodal department i.e. the Education Department is directed to take note of the grievances of the petitioners and frame suitable pr oposal for consideration by the Finance Department to grant upgradation to Pay B and-4. To facilitate the exercise, in addition to the pending representation, th e petitioners will furnish this order and fresh representation through their ass ociation to the Commissioner and Secretary to the Education (Secondary) Departme nt. Thereafter, the proposal will be considered on merit by the Finance Departm ent. The requisite exercise should be made expeditiously and preferably within 6 months after receipt of intimation from the petitioners. 15. any order on cost.
Decision
Both cases are disposed of accordingly with the above direction without