V.N.JOSHI v. PRINCIPAL

(cid:9)It is contended that indisputably on the date of his appointment, the petitioner did not possess the qualification of Master's Degree, nor did he possess the requisite 7 years' teaching experience and, therefore, he was not eligible for appointment to the post of higher secondary teacher, nor his appointment was sanctioned by the Joint Director of Education (10+2 Special Division) as required. Thus, the petitioner is not entitled to the higher payscale of Rs. 550-900 before he acquired requisite qualification for appointment to the pot of secondary school teacher i.e. the petitioner acquired seven years' teaching experience in the year 1984 and accordingly he has been sanctioned higher scale of pay with effect from 1st September, 1984. (cid:9)In my view, the defence is not acceptable. The Government Resolution dated 8th October, 1990, though has taken note of its earlier Resolution dated 28th October, 1975, does not take note of its previous Resolutions of 18th January, 1989 and of 8th December, 1989.

The said Resolutions were issued pursuant to the demand made by the higher secondary teachers and accepted by the Government. It is categorically provided that even those teachers who did not possess the requisite qualifications if appointed prior to 1st July, 1979, shall be entitled to notional pay fixation in the higher scale of pay of Rs.550-900 with effect from 1st July, 1979 till 31st December, 1985. As discussed hereinabove, the expression 'lesser (LAGHU) qualification' occurring in the said Resolution dated 8th December, 1989, was clarified in the Circulars dated 24th April, 1990 and 7th July, 1990, issued by the Joint Director of Education (10+2 Special Division). It is apparent that the aforesaid Resolution dated 8th December, 1989 and the Circulars dated 24th April, 1990 and 7th July, 1990 have not been considered by the State Government while issuing the Resolution dated 8th October, 1990.

In my view, in the above referred Resolution dated 8th December, 1989 and the Circulars dated 24th April, 1990 and 7th July, 1990 and also the Circular dated 20th December, 1991, the Government's intention is clearly spelt out. The Government was conscious of the fact that upon introduction of educational reform i.e. 10+2 system, the teachers possessing the requisite qualifications for higher secondary schools may not be available and many a teachers not possessing the requisite qualifications were appointed by the concerned District Education Officers, and such teachers had infact all along taught the higher secondary students. That is why the Government sanctioned higher pay scale to them also with effect from 1st July, 1979, provided their appointments were sanctioned by the Directorate of Education (10+2 Special Division). Considering that many such teachers may have been appointed without securing such sanction, the Government, by its Circular dated 7th July, 1990, issued specific instructions to all the District Education Officers to secure such sanction by furnishing information in the prescribed proforma i.e. even if such sanction were not obtained at the relevant time, the Directorate would consider such appointments and would grant ex-post-facto-sanction.

Further, even after the Resolution dated 8th October, 1990, the Government by its Circular dated 20th December, 1991, reiterated the above referred policy decision. It is, thus, apparent that while issuing the Resolution dated 8th October, 1990, the Government without considering its previous policy, took an about-turn and directed that the higher secondary teachers would be entitled to the higher scale of pay only after acquiring the requisite qualifications. The Resolution dated 8th October, 1990, is clearly contrary to the earlier policy spelt out in the Resolution dated 8th December, 1989 and clarified/explained by the Circulars dated 24th April, 1990, 7th July, 1990 and even that of 20th December, 1991. Neither the Government has referred to its earlier policy, nor its intention to alter the same, nor it has superseded its earlier policy. I am, therefore, of the opinion that the Government's policy spelt out in the above Resolution dated 8th December, 1989, and clarified/explained by the subsequent Circulars shall prevail over the latter Resolution of 8th October, 1990.

(cid:9)It is however not known whether pursuant to the Circular dated 7th July, 1990, the respondent no.2 had recommended the case of the petitioner to the Joint Director of Education (10+2 Special Division) for approval. Even if it is not done, it is too late in the day to deny the benefit conferred upon the petitioner and such others under the Resolution dated 8th December,

1989. In any view of the matter, it was the duty of the District Education Officer to seek previous sanction. If he failed to secure such sanction, the teacher concerned can not be made to suffer the loss. (cid:9)In view of the above discussion, I hold that the petitioner is entitled to the benefit of the Government Resolutions dated 18th January, 1989 and 8th December, 1989, and the clarification made in the Circulars dated 24th April, 1990 and 7th July, 1990, and 20th December,

1991. The petitioner is, accordingly, entitled to notional pay fixation in the higher scale of pay of Rs. 550-900 for the period from 1st July, 1979 to 31st December, 1985. His pay in the scale of Rs. 1640-2900 with effect from 1st January, 1986, requires to be revised accordingly. The petitioner is also entitled to the arrears of salary commencing from 1st January, 1986. However, if the petitioner has been paid any amount by way of special allowance, the same shall be adjusted against the amount which may be found to be due and payable. Mr. Tanna has also claimed interest on the amount of arrears of salary on account of delay which has been caused for no fault of the petitioner. I believe that this delay has occurred on account of various modifications and clarifications issued time and again. I, therefore, do not consider it to be a case fit for awarding interest. The exercise of revising the pay of the petitioner shall be completed within a period of four weeks from today and the payment of the amount of difference of salary shall be made within a period of four weeks thereafter. (cid:9)Petition is, accordingly, allowed. Rule is made absolute to the aforesaid extent. There shall be no order as to costs. (cid:9) (cid:9)... (cid:9) JOSHI