tition Civil Nos 63  449 of 1986 etc
Under Article 32 of the Constitution of India AK Ganguli A Sharan and GS Chatterjee for the Petitioners
RS Sodhi for the Respondents
The Judgment of the Court was delivered by SEN J
This is a batch of petitions under article 32 of the Constitution filed on behalf of Matriculate Junior Basic Trained Teachers in Government Schools placed in Category B Group II in 1090 terms of paragraph 3 of the State Government Circular dated July 23 1957 who have been continuously and unrelentlessly struggling to get the benefit of higher grade of pay on their improving or acquiring higher qualification viz BA BTBA BEdMatric with JST Gyani or Prabhakar as per the terms thereof and the persistent refusal of the State Government to adhere to the terms of the said Circular mainly on the ground that such teachers on their improving or acquiring higher qualifications during the course of their service would not automatically be placed in different grades commensurate with their academic qualifications unless they had the professional qualification of requisite experience of a post carried in the higher grade irrespective of the number of posts available in the department in that category
It is asserted that the aforesaid Circular was couched in somewhat ambiguous language and has resulted in different interpretations and it was never the intention of the Government to undertake the continuing unintended heavy financial burden that had arisen because of the faulty drafting of the Circular
It is common ground that by the aforesaid Circular dated July 23 1957 the State Government directed revision of the existing pay scales of various categories of subordinate offices including Teachers in the Education Department
Paragraph 3 thereof provided for revision of pay scales of Teachers and placed them into two distinct categories namely Category A and Category B and inter alia laid down the requirement of academic qualifications with respect to each
The relevant part of paragraph 3 reads as follows 3
Teachers in the Education Department It has been decided that all teachers according to their qualifications should be placed in the following two broad categories CATEGORY A  BABScBComBSc
Agricultureand BTDiploma in Physical EducationDiploma in Senior Basic Training
CATEGORY B  Group I Matrics with Basic Training including Junior Teachers Group II Junior School Teachers including Assistant Mistresses with BAInterMatric plus JAV Training
 1091 It is quite evident that the revision of pay of Teachers was based on the principle of linking pay to qualification
It would not be out of place to mention that the Kothari Commission constituted by the State Government of Punjab considered in great detail the scales of pay of Teachers
The Commission strongly expressed the view that the scales of pay of Teachers should be linked to educational qualifications
Accepting the recommendations of the Kothari Commission the State Government of Haryana in 1968 directed further revision of scales of pay of Teachers working in Government Schools wef December 1 1967
On more occasions than one this Court had to intervene on behalf of these unfortunate Teachers for the redressal of the wrong done to them by denial of higher scales of pay on their improving or acquiring higher academic qualifications and issued directions for extending the benefit of paragraph 3 of the Circular to them
Despite the repeated directions the State Government has been adamant in not complying with such directions on one pretext or another
In State of Punjab  Anr
vs Kirpal Singh Bhatia  Ors  this Court upheld the judgment of the Punjab  Haryana High Court in Union of India  Ors
vs Kirpal Singh Bhatia  Ors directing that Teachers holding BA BTBA BEd
qualifications would be entitled to the higher scale of pay
The Court construed the aforesaid Circular as falling within the ambit of r 10 of the Punjab Educational Services Class III School Cadre Rules 1955 as to the entitlement of higher scales of pay and held that it had the effect of fixing the scale of pay on the basis of academic qualifications
It was accordingly held that Teachers who possessed the degree of BT or the equivalent on May 11957 would be entitled to scales of pay commensurate with such higher qualification and as to the Teachers who acquired such higher qualification thereafter they would be entitled to their revised scale of pay wef
the date they passed the examination
It categorically repelled the contention on behalf of the Government that there could be no automatic revision of the scales of pay dependent upon the higher qualifications and unequivocally held that Teachers holding BA BTBA BEd
qualifications became entitled to the revised scales of pay according to Category A wef
the date they passed the examination in terms of paragraph 3 of the Circular
In Labh Singh Garcha  Ors
vs State of Punjab  Anr
 WP No 181076 decided on July 20 1976 Chinnappa Reddy J speaking for himself and Surinder Singh J allowed the writ petition filed by 1092 JBT Teachers falling in Category B who claimed the benefit of higher scales of pay as done in the case of Graduate Teachers in Categroy A pursuant to the High Court s decree in Kirpal Singh Bhatia s case
The Court found that the action of the Government in denying to the JBT Teachers who had acquired or improved their educational qualification the benefit of the higher scales of pay was per se discriminatory and accordingly issued a direction to the State Government to release to them the revised scales of pay admissible to them in terms of paragraph 3 of the Circular
The State Government carried an appeal to this Court
In State of Punjab  Ors
vs Labh Singh Garcha  Ors CA Nos 926 2777 decided on August 7 1979 this Court held that the matter was squarely covered by the decision of this Court in Kirpal Singh Bhatia s case and observed that no new point arises  and accordingly dismissed the appeal
The State Government having failed to carry out the directions issued the JBT Teachers with higher qualifications were constrained to move the High Court for contempt but it declined to interfere
Aggrieved the Teachers came up in appeal
At the hearing of Avtar Singh vs Manmohan Singh  Anr CA 379083 decided on September 14 1984 the Court indicated that the view taken by the High Court did not commend to it and wanted learned counsel for the State Government to ascertain the attitude of the Government
At his request the matter was adjourned
At the resumed hearing he signified the willingness of the State Government to comply with the directions given by this Court
The Court accordingly set aside the judgment of the High Court and directed the State Government to implement the order passed in Labh Singh Garcha s case within three months holding that the appellants and other petitioners in the High Court and Teachers similarly situate ie JBT Teachers with higher qualifications were entitled to the benefit of paragraph 3 of the Circular
It pointed out that the Director of public Instructions Schools Punjab by her affidavit dated February 5 1980 had unconditionally agreed to implement the same without any reservation
As regards such Teachers who had not approached the Court but were similarly situate the Court directed that they must make an application for seeking benefit of the aforesaid Circular
By a clarificatory order dated February 21 1985 the Court clarified that every Teacher entitled to the benefit of the earlier order may make an application within six weeks from that date
It however made a direction to the following effect 1093 In the application the teacher should strive as best shehe could to set out his claim as directed herein
The Director may verify the claim with reference to record he may have and the eligibility for relief
But if the claim is of a teacher who was a petitioner in this Court or in the High Court eligibility enquiry is impermissible only amount of claim may be verified
The Director of Education shall process all the applications received by him in the manner he thinks fit but he must make the payment within three months from the date of the receipt of the application Emphasis supplied In compliance therewith the Director of Public Instructions Schools Punjab by order dated 30th June 1986 accorded sanction to make payment of arrears of pay according to Teachers belonging to Category B Group I to 3600 JBT Teachers falling in Category B Group II who had improved their educational qualifications and acquired degrees in BA BTBA BEd etc but denied similar relief to other 6000 Teachers falling in Category B Group II ie the petitioners on the ground that they did not have the requisite professional training of JSTJAV and therefore not entitled to the higher grade
The impugned order proceeds on the premise that eligibility for the claim for JST grade which was a higher grade did not depend upon acquiring a higher educational qualification of BA BT etc
but also to having the requisite professional training ie JSTJAV training and further that a higher grade was only allowed to the then existing JST Teachers which was a diminishing cadre and since recruitment to that cadre had been stopped there was no question of any entitlement of such Teachers to acquiring the necessary professional training
In other words the Government has adopted the stand that the right of the JBT Teachers belonging to Category B Group II to the higher scale admissible to Teachers placed in Category B Group I could not simply be based on their educational qualification
In support of these petitions Shri AK Ganguly learned counsel appearing for the petitioners with infinite care took us through all the orders referred to above and rightly submitted that the State Government having given an undertaking in Avtar Singh s case that they are prepared to carry out the directions made by the High Court they are bound to grant the benefit of paragraph 3 of the Circular to all the Teachers belonging to Category B Group II entitled to the higher grade of pay on their acquiring or improving their qualification as 1094 from the respective dates of their passing the examination
He further submitted that it was not open to the Government on the pretext of verification of claims to confine the relief to some of the teachers and deny the same to the others who were all similarly situate recruited in the same manner and appointed as Matriculate JBT Teachers and had improved their qualifications by acquiring degrees in BA BT etc
and the so called professional training ie JSTJAV could not be made a condition pre requisite to the grant of higher pay
In reply Shri RS Sodhi learned counsel for the State Government with his usual fairness accepted that the Government was bound by the undertaking given in Avtar Singh s case but contended that even so the petitioners were not entitled to such higher pay as they did not stand the eligibility test on verification of their claims merely on their acquiring higher educational qualification
He pointed out that according to paragraph 3 of the Circular all Teachers according to their qualifications were placed into two broad categories for purposes of revision of pay Category A consisting of BABScBComBSc Agriculture and BT and Category B consisting of 4 groups of whom Group I was Matrics with basic training including JBT 
There were three scales of pay in Category B Lower Rs60 120 Middle Rs120 175 and Upper Rs 140 200
By way of incentive it was directed that posts falling in these grounds would be in the following proportion Group I Lower Scale 85 Middle Scale 15
15 of Teachers in this group had to be straightway promoted to the Middle Scale by selection based on seniority and merit while the rest were given the Lower Scale
The scale of Rs60 120 was later revised to Rs125 300 that of Rs 120 175 to Rs150 300 and that of Rs140 200 to Rs480 880 wef
1st November 1966 16th July 1975 and 1st January 1978
In contrast Junior Secondary TrainedJunior Anglo Vernacular Teachers with JSTJAV teachers training qualifications were placed in Category B Group II and their pay scale was not revised
The then existing incumbents in this category were allowed to retain their existing pay scale of Rs80 250 which was subsequently revised from time to time as per conditions of their service
As a diminishing cadre they were therefore carried on a protected pay scale of BA BT Teachers viz Rs620 1200
According to the learned counsel the question before the Court is whether JBT Teachers placed in Category B Group II have to be given the benefit of the pay scale of Rs620 1200
This he says cannot be done as these Teachers were not entitled to initial scale of Rs80 250 meant only for Junior Secondary TrainedJunior Anglo Vernacular Teachers with JSTJAV training qualification ie Teachers governed by the protected category
At the hearing 1095 we directed the State Government to clarify its stand on the eligibilitytest of Category B Group II Teachers to higher pay
The Director of Public Instructions Schools Pubjab and the Deputy Director School Admn Office of the Director of Public Instructions have accordingly filed their additional affidavits dated 10th November 1986 and 9th March 1987
The petitioners have also placed on record their written submissions in answer to these additional affidavit
The controversy is now limited to the question whether JBT Teachers falling under Category B Group II are not entitled to the higher pay merely on their acquiring higher educational qualification of BA BTBA BEd etc
but that gaining professional experience of JSTJAV training was essential
That must turn on the relevant clause in paragraph 3 relating to them which may be extracted below Category B  Group II Junior School Teachers including Assistant Mistresses with BRInterMatric plus JAV Training
 As a matter of plain construction we are quite clear in our mind that Graduate Teachers form a class by themselves and cannot be subjected to the further requirement of having JSTJAV training
The words plus JAV training  clearly qualify the word Matric  and relate only to Matriculate JBT Teachers
Such a classification for revision of pay satisfies the touchstone of article 14 and would render the action of the State Government in seeking to discriminate between Graduate Teachers with JSTJAV training and Graduate Teachers with or without such training impermissible as the attempt is to create a class within a class without any rational basis
We must accordingly uphold contention of the petitioners that they are entitled to higher pay on acquiring or improving their academic qualification
It is regrettable that despite clear pronouncements made by this Court as well as the High Court in a long line of decisions starting with Kirpal Singh Bhatia s case there is no redressal of the wrong done to JBT Teachers belonging to Category B Group II although they had acquired BA BTBA BEd qualifications
Quite recently in Chaman Lal  Ors
vs State of Haryana  Chinnappa Reddy J has considered the question in some depth
The learned Judge repelled the contention of the State Government of Haryana based on its order dated 5th September 1979 which was sought to be interpreted to mean that the Teachers who had acquired the BT or BEd
qualification subsequent to 1st December 1096 1967 the date on which the 1968 order came into force and before 5th September 1979 would be entitled to the higher grade but wef 5th September 1979 only and that those who acquired the qualification subsequent to that date would not be entitled to the higher grade
According to the High Court in that case the 1968 order did away with the principle of the 1957 order that Teachers who acquired BT or BEd
qualification should get the higher grade and that a concession was shown in 1979 enabling the Teachers who acquired the BT or BEd
qualification between 1968 and 1979 to get the higher scale from 1979
This Court held that the view taken by the High Court could not be sustained and observed The principle that pay should be linked to qualification was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia case was argued in the High Court and in the Supreme Court there was not the slightest whisper that the principle had been departed from in the 1968 order
In fact the 1968 order expressly stated that the government had accepted the Kothari Commission s report in regard to scales of pay and as already pointed out by us the main feature of the Kothari Commission s report in regard to pay was the linking of pay to qualification
That was apparently the reason why no such argument was advanced in Kirpal Singh Bhatia case
Even subsequently when several writ petitions were disposed of by the High Court of Punjab and Haryana and when the government issued consequential orders it was never suggested that the 1968 order was a retraction from the principle of qualification linked pay
 The Learned Judge then said The 1968 order must be read in the light of the 1957 order and the report of the Kothari Commission which was accepted
If so read there can be no doubt that the government never intended to retract from the principle that teachers acquiring the BT or BEd would be entitled to the higher grade with effect from the respective dates of their acquiring that qualification
The 1979 order was indeed superfluous
There was no need for any special sanction for the grant of Master s grade to unadjusted JBT teachers who had passed BA BEd
That was already the position when obtained both as a result of the 1957 and 1968 orders 1097 and the several judgments of the court
We do not think that the Punjab and Haryana High Court was justified in departing from the rule in the judgment under appeal
The rule had been well established and consistently acted upon
Nor was it open to the government to act upon the principle in some cases and depart from it in other cases
 The result therefore is that the writ petitions succeed and are allowed with costs
We direct the respondents to give to the petitioners who are Teachers placed in Category B Group II the higher scale of pay admissible to Teachers in Category B Group I they having acquired the qualification of BA BTBA BEd etc with effect from the respective dates of their acquiring the qualification
NVK Petitions allowed


Summary:
 Section 15 of the provided that when a marriage was dissolved by a decree of divorce it shall be lawful for either of the spouses to marry again where either there was no right of appeal or where there was such a right of appeal the time for appealing had expired without the appeal being presented or the appeal having been presented was dismissed
Proviso to the section provided that it shall not be lawful for either of them to remarry unless at the date of such marriage at least one year had elapsed from the date of decree in the court of first instance
This proviso was deleted by the Marriage Laws Amendment Act 1976
A decree for dissolution of marriage was granted by the Additional District Judge against the petitioner wife on the ground of cruelty under section 13i a of the 
The petitioner wife s appeal to the High Court was dismissed in limine
The petitioner wife filed a Special Leave Petition in this Court
A preliminary objection was raised on behalf of the respondent husband 1099 that the petition had become infructuous inasmuch as the respondent husband had meanwhile married again on 17th August 1986 just a month after the dismissal of the petitioner s appeal by the High Court
Over ruling the preliminary objection and directing the Special Leave Petition to be placed for hearing  HELD Under the law laid down in the  monogamy is the rule and a party can only contract valid second marriage after the first ceases to exist in the manner envisaged by section 15
This rule is an integral part of the proceedings by which alone both the parties to the decree can be released from their incapacity to contract a fresh marriage
1102E F Prior to the Amendment Act of 1976 the proviso to section 15 laid down a period of waiting of one year between the passing of a decree for divorce by the court of first instance and the remarriage of any of the spouses
The deletion of this proviso by the Marriage Laws Amendment Act 1976 and doing away with the period of waiting has given rise to a question of great difficulty
1103A B The section when it speaks of a case where there is a right of appeal does not in terms cover the case of an application for special leave to appeal to the Supreme Court under Article 136 of the Constitution
1103B C Under Article 133c of the a special leave petition can be filed within 90 days from the date of the disposal of the appeal by the High Court
Therefore a successful party cannot take away the right of presenting an application from the other spouse by marrying immediately after the High Court s judgment and must wait till that period was over and make sure whether an application for special leave has been filed in the Supreme Court
1103C D Chandra Mohini Srivastava vs Avinash Prasad Srivastava Ors
   followed
In the instant case the High Court having dismissed the appeal on 16th July 1986 the petitioner could have presented a special leave petition within ninety days therefrom ie till 14th September 1986
Till that period was over it was not lawful for either party to marry again as provided by section 15
1104C D 1100 Though the respondent has denied any knowledge of the filing of the appeal in the High Court or of its dismissal and has justified the second marriage on August 17 1986 this has been controverted by the petitioner by filing a copy of the registered notice dated May 31 1986 intimating the respondent of the filing of the appeal
It was therefore incumbent on the respondent to have apprised himself as to whether the appeal in the High Court was still pending and if not whether the period for filing a special leave petition to this Court had expired
1104A C Catterall vs Sweetman 1845 9 Jur 951 954 referred to