The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (S) No. 5599 of 2023 --------- Smt. Sharda Agrawal, aged about 70 years, W/o Shri Ved Prakash, R/o-Awantika, Between Road No.1 & 2, Main Road, Ashok Nagar, P.O.-Ashok Nagar, P.S. Argora, District-Ranchi (Jharkhand). Versus ....Petitioner 1. The State of Jharkhand through Principal Secretary, School, Education and Literacy Department Govt. Of Jharkhand, having its office at Project Building, P.O. & P.S.-Dhurwa, District-Ranchi; 2. Director, Primary Education, School, Education and Literacy Department Govt. Of Jharkhand, having its office at Project Building, P.O. & P.S.-Dhurwa, District-Ranchi; 3. Regional Joint Director of Education, South Chota Nagpur Division, Ranchi, G.P.O., P.S.-Kotwali, District-Ranchi; 4. Regional Joint Director of Education, Palamu Division, Medininagar, P.O. & P.S.-Medininagar, District-Palamu; 5. District Superintendent of Education, Palamu, P.O. & P.S.-Medininagar, District-Palamu. --------- ....Respondents CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Petitioner For the Resp.-State --------- : Mr. Saurabh Shekhar, Adv. Mrs. Sonam, Adv. : Mr. Sreenu Garapati, S.C.-III --------- C.A.V. ON:- 27.08.2024 PRONOUNCED ON:- 24/09/2024 Heard learned counsels for the parties. 2. The instant writ application has been preferred by the petitioner praying therein for the following reliefs: “i. For quashing of order dated 16.09.2021 (Annexure-10 of the writ petition), whereby, the claims of the petitioner have been denied and rejected. ii. For issuance of following directions: 1. To grant the pay scale of graduate trained, w.e.f. the date when (Benefit of Rs.5,500-9,000, w.e.f. juniors have been granted. 25.08.1999) 2. Grant of pay scale of Rs.6,500-10,500/-, as per Govt. Gazette notification dated 13.02.1999, Annexure-11, Page-20 of the Rejoinder. (w.ef 01.08.2005-posting as Headmaster) 3. To grant third MACP w.e.f. 20.10.2012, the date of completion of ten years of regular service. iii. For payment of arrears of salary and revise the pension, as per the grant of above mentioned benefits.” 3. The brief facts of the case as indicated in the writ application is that the petitioner was appointed as Assistant Teacher, under the signature of DSE, Palamu vide memo No.3390 dated 16.10.1982 and she gave her joining on 20.10.1982, as Assistant Teacher, in the Govt. Basic School, Satbarwa, Palamu.
Legal Reasoning
The petitioner was granted first up-gradation in the senior grade in the year 1994, on rendering 12 years of service. On 03.12.2002, a decision was taken by the Govt. of Jharkhand, through its Human Resource Development Department that the Assistant Teacher who had been posted in the Govt. Basic School and were appointed under the panel constituted and recommended by the District Establishment Committee in between 11.08.1981 to 17.08.1988, would be considered as Assistant Teachers of Divisional level, from the date of their initial appointment. Therefore, the petitioner's status has been fixed as a Divisional level Assistant Teacher from the date of initial appointment, as per order dated 03.12.2002. Thereafter, on 11.10.2003, the petitioner was promoted from Lower Subordinate Education Service to Subordinate Education Service in the pay scale of Rs.5,500-9,000/- and was posted as lecturer at Primary Teachers Training College, Satbarwa, Palamu. 4. In the Subordinate Education Services- there is teaching branch and inspection branch. The pay scale of the teaching branch is fixed as Rs.6,500-10,500/-, while that of inspection branch is Rs.5,500-9,000/-. The petitioner had given an option and undertaken that she will perform her services in the teaching unit. Further, she was never posted under the inspection branch. Despite of this, the pay scale of the petitioner was fixed at Rs.5,500-9,000/-. The petitioner was posted as Headmaster, Govt. Basic School, Kanke, Ranchi on 01.08.2005, and she retired from her services on 31.12.2012, from the post of Headmaster, Govt. Basic School, Ranchi. 5.
Legal Reasoning
Learned counsel for the petitioner has made three-fold 2 submissions with regard to each relief prayed for in the writ application. (i) With regard to the first prayer i.e., to grant pay scale of graduate trained, w.e.f. the date when juniors have been granted details of which are indicated in the table as under: Sl. No. Petitioner Date of initial joining Graduation Training 98 Sharda Agrawal 20.10.1982 1973 1978 315 Madan Prasad 14.08.1982 1992 1992 321 Arun Kumar Pandey 24.08.1993 1993 1993 Learned counsel for the petitioner submits that as per the above table, Madan Prasad and Arun Kumar Pandey have been granted the benefit of graduate trained scale (Rs.5,500- 9,000/-unrevised), in view of the office order dated 05.10.2009 and this benefit has been enhanced to them, w.e.f. 25.08.2009, which is missing in case of the petitioner. He further submits that the petitioner at the time of appointment was graduate trained, therefore, she otherwise also, possesses educational qualification to get the benefit of graduate trained scale in Rs 5,500-9,000/-. (ii). With regard to the second prayer i.e., to grant pay scale of Rs.6,500-10,500/-, as per Govt. Gazette notification dated 13.02.1999, w.e.f. 01.08.2005 posting as Headmaster, learned counsel for the petitioner submits that the petitioner had opted for teaching branch in the Subordinate Education Service, which is equivalent to the pay scale of Rs.6,500-10,500/-, as per the Finance Department Circular, dated 08.02.1999 and its subsequent clarification dated 13.02.1999. He submits that in the Gazette notification dated 13.02.1999, it has been provided that the Headmasters of the Middle School, will be given the benefit of Rs.6,500-10,500/-. He submits that the notification further provides at Clause 45, that Subordinate Education Service teachers should give an undertaking that they will continue as 3 teaching staff and will not opt for posting on the inspection posts and the petitioner was promoted to Subordinate Education Service in the year 2003 and she became Headmaster of Middle School in the year 01.08.2005 and thereafter, she had served as Headmaster. Further, she had also given undertaking that she will never opt for the inspection posts in the Subordinate Education Service and she retired from a teaching post on 31.12.2012. He further submits that therefore, the notification dated 13.02.1999 is attracted in case of the petitioner to grant her the benefit of the pay scale of Rs.6,500-10,500/-, at least w.e.f. 01.08.2005, from which date she was serving as Headmaster. (iii). With regard to the third prayer i.e. To grant third MACP w.e.f. 20.10.2012, the date of completion of ten years of regular service, learned counsel for the petitioner submits that the petitioner was appointed from lower subordinate education service to subordinate education service, by way of promotion, therefore, it means that the petitioner was working w.e.f. 1982 and gradually, she has been promoted in hierarchy, therefore, it is clear that she had been rendering services in the same cadre. He further submits that the promotion in the same cadre bearing different hierarchies is the basis of granting the benefit of ACP/MACP of higher post. He lastly submits that the petitioner's services should, therefore, be counted w.e.f. 1982, and on that analogy, she has completed 30 years of regular service in the month of October, 2012, prior to her retirement on 31.12.2012, therefore, she is entitled to the benefit of third MACP. 6. At the outset, learned counsel for the respondents raised a preliminary objection of delay and laches. He further submits that the petitioner's claims, documents produced in support of her claims and the documents available made by the Regional Deputy Director of Education, South Chhotanagpur Division were carefully examined upon which it has surfaced that the petitioner was appointed on 16.10.1982 in Matric Trained 4 Scale of 680-960 (revised pay Scale 1200-2040) and she was posted at Government Elementary School. He further submits that upon completion of 12 years of service she was granted the first-time bound promotion w.e.f., 12.10.1994 in the Pay Scale of 1400-2600. Thereafter, pursuant to the directions of the High Court in C.W.J.C. No. 3097/95, the petitioner's services were converted into Lower Subordinate Education Services and hence the petitioner was entitled for service benefits of the Lower Subordinate Education Services. Leaned counsel further submits that the promotions of teachers of Lower Subordinate Education Services are given to Upper Subordinate Education Services as per the rules, and in the event of non-grant of promotions, time bound promotions are given to them. The petitioner was granted promotion to the Upper Subordinate Education Services as per the rules and she was accordingly posted upon promotion, in the year 2003. He contended that it is evident from documents available on record that the petitioner could have been eligible for further promotions only after passage of 10 years in one cadre and hence, she was not promoted due to the fact that she did not complete the requisite length of service i.e., 10 years in one cadre which is essential for promotion and hence her claims were rejected. He further submits that the petitioner being officer of the Upper Subordinate Education Services was posted as Principal in Government Elementary School and hence, the provisions of letter no. 660 dated 08.02.1999 issued by the Department of Finance are applicable. He adds that the petitioner retired from service in the year 2012 and hence, she could not be promoted due to lack of requisite years of service. 7. Learned counsel further submits that the petitioner's claim of Graduate Trained Pay Scale was also considered and it is evident that the State Elementary Schools are covered under divisional cadre and the entitlement of Graduate Trained Scale is to be granted on the basis of divisional seniority list and the parity 5 claimed by the petitioner with respect to others is misconceived given the facts that the others have been granted promotion upon the seniority list prepared in the year 2003 which was State Level Seniority List and granting promotion to the petitioner on divisional cadre post is in contravention to the departmental rules. He further submits that the petitioner's claim was not tenable in the eyes of departmental rules and hence, it was rejected by the State Respondents. 8. Learned counsel further submits that the impugned order has been passed as per the applicable rules of promotions keeping in view the directions of the Hon'ble Court and hence does not suffer from any infirmity or illegality. He lastly submits that from the above stated facts and circumstances of the case, and as per the provisions of law, the present writ petition is devoid of any merit, therefore, the same is liable to be dismissed in limine. Learned counsel for the respondent reiterated that on the one hand, the petitioner’s case is not maintainable on the ground of delay and laches and on the other hand, since there was a change in cadre i.e., from lower Subordinate Service Cadre to Subordinate Education Service, the petitioner is not entitled for any relief and accordingly, the impugned order does not require any interference. 9. Having heard learned counsel for the parties and after going through the impugned order and the averments made in the respective affidavits, it appears that the employee, namely Arun Kumar Pandey, who was appointed in the year 1993, when he could be granted the benefit of the graduate trained scale, then the petitioner who possesses the degree of graduation and training, right from the start of her appointment in the year 1982, why she would be neglected, at least from 25.08.1999 i.e., the date when Arun Kumar Pandey was granted such benefit, in the scale of Rs.5,500-9,000/-. 10. It further transpires that the impugned order does not deal with the issue of grant of the pay scale of Rs.6,500-10,500/- 6 to the petitioner, once she was posted as Headmaster on 01.08.2005, as subordinate education service employee (promotion in the year 2003), on applicability of Govt. notification dated 13.02.1999, and submission of the undertaking that she will always work as teaching employee and will not shift to inspection side. 11. It is further evident that the impugned order wrongly calculates initiation of service of the petitioner, w.e.f. the year 2003, when she was promoted as subordinate education service employee; rather it should be counted w.e.f. 1982, from the date of her initial appointment. The induction of the petitioner in subordinate education service in the year 2003 was by way of promotion, as per the order dated 11.10.2003. Therefore, the hierarchy suggests continuity in cadre that the benefit of third MACP in the higher scale should be granted, in the month of October, 2012 when she completes 30 years of services, prior to her retirement on 31.12.2012. 12. So far as the ground of delay and laches is concerned, it appears that the respondents themselves has issued the impugned order in the year 2021 i.e. on 16.09.2021; whereby the claim of the petitioner was rejected and the writ application has been filed on 05.10.2023; apparently, there is no delay in filing the writ application. Further in the case of Shiv Dass v. Union of India and Others reported in (2007) 9 SCC 274, it has been held in para 10 as under: “10. In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone.” Interestingly, this case has been relied upon by the respondent, however, in the said paragraph itself, it has been held that in the case of pension the cause of action actually continues from month to month and it has also been observed that every 7 case has to be decided on their own facts. In the instant case also, the impugned order has been passed in the year 2021 and writ application has been filed in the year 2023; as such, this Court holds that there is no delay on the part of the petitioner in filing the writ application. 13. Having regard to the aforesaid discussions, the impugned order dated 16.09.2021 (Annexure-10), is hereby, quashed and set aside. The Respondents are directed to grant the pay scale of graduate trained, w.e.f. the date when juniors have been granted i.e. the benefit of Rs.5,500-9,000, w.e.f. 25.08.1999. The Respondents are further directed to grant pay scale of Rs.6,500-10,500/-, as per Govt. Gazette notification dated 13.02.1999 (Annexure-11 of the Rejoinder) w.e.f. 01.08.2005- when the petitioner was posted as Headmaster and further grant 3rd MACP w.e.f. 20.10.2012, the date of completion of ten years of regular service. Consequently, the concerned Respondent is directed to issue necessary order for payment of arrears of salary and revise the pension accordingly, as per the grant of above-mentioned benefits. Since, the petitioner is a senior citizen, the entire exercise shall be completed within a period of eight weeks from the date of receipt/production of copy of this order. 14. As a result, the instant writ application stands allowed in the manner indicated hereinabove. Jharkhand High Court at Ranchi Dated:-24/09/2024 Vikas/- AFR (Deepak Roshan, J.) 8