IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 1243 of 2001 & CWP No. 273 of 2002 Date of decision : November 26, 2008 (1) CWP No. 1243 of 2001 B.D. Moudgil and Others Versus State of H.P. & Anr. (2) CWP No. 273 of 2002 State of H.P. & Others Versus B.D. Moudgil & Ors. Coram The Hon’ble Mr. Justice R.B. Misra, J. The Hon’ble Mr. Justice Surjit Singh, J. Whether approved for reporting1 Yes. For the Petitioners : Mr. K.D. Shreedhar, Advocate in CWP No. 1243/2001 and Mr. P.K. Sharma, Addl. AG with Mr. P.M. Negi, Dy. AG in CWP No. 273/2002. For the respondents : Mr. P.K. Sharma, Addl. AG with Mr. P.M. Negi, Deputy A.G. in CWP No. 1243/2001 and Mr. K. D. Shreedhar, Advocate, for respondents No. 1 to 4 and 6 to 11 in CWP No. 273/2002. Per Surjit Singh, Judge( Oral ) These two writ petitions have been filed, under Articles 226 and 227 of the Constitution of India for judicial review of the order dated July 18, 2001 of the H.P. State Administrative Tribunal, whereby Original Application No. 2289 of 1993 filed by B.D. Moudgil and others, petitioners in CWP No. 1243 of 2001 and hereinafter called ‘petitioners’ has though been allowed, yet the relief has not been granted, retrospectively. The petitioners have filed this writ petition seeking 1 Whether reporters of local Papers may be allowed to see the judgment? 2… modification in the order of the Tribunal by judicial review, to the extent that relief is directed to be given with retrospective effect, i.e. from the year 1987. The other writ petition, i.e. CWP No. 273 of 2002, has been filed by the State of H.P. and Director, Technical Education, who were respondents in the aforesaid Original Application and shall hereinafter be referred to as the ‘respondents’ seeking reversal of the order of the Tribunal allowing the Original Application. Since the order under challenge in both the writ petitions is the same, we are disposing of these writ petitions by a common judgment. 2. Facts necessary for comprehending the controversy and the issues involved, may be noticed. Petitioners were recruited from 1967 to 1990, as Junior Lecturers in Govt. Polytechnics for teaching non-engineering subjects like-English, Mathematics, Physics and Chemistry to the students of Polytechnics. There were no promotional avenues for the petitioners and it appears that promotional avenues for teachers recruited at the lowest level for engineering disciplines also, there were no promotional avenues. Government of India appointed a committee known as “Madan Committee” for suggesting staffing pattern and the requirement of staff for the Government Polytechnics. Committee submitted its report in the year 1972 and recommended that in the case of teachers for engineering disciplines, there should be posts of Head of the department, Senior Lecturers and Lecturers. It was recommended that in every engineering discipline, there should be one post of Head of the department and one post of Senior Lecturer. As regards the teachers of non-engineering subjects i.e. English, Mathematics, Chemistry and Physics, the Committee recommended that there should be posts of Lecturers and one post out of all the posts of the Lecturers in all the four non-engineering subjects, should be 3… designated as Senior Lecturer. Respondent No. 1 passed an order, Anexure-A2 on 11.2.1987 creating posts of Senior Lecturers in the engineering discipline. We have been told that the posts of Head of the department were already available in all the engineering discipline. Annexure-A2 reads that the posts of Senior Lectures had been created with a view to implementing Madan Committee Report. However, in respect of non-engineering subjects, no post of Senior Lecturer was created, though, through a separate notification, Annexure-A3, posts of Junior Lecturers, which some of the petitioners were holding, at the relevant time, had been up-graded to those Lecturers. Petitioners made representation to the respondents seeking implementation of the report of the Madan Committee in respect of their non-engineering teaching subjects also, but those did not find favour with the respondents so the petitioners filed O.A. in the year 1992. Learned Tribunal ordered the respondents to treat that O.A. as representation. Respondents rejected that representation, so a fresh O.A. was filed in the year 1993. The aforesaid facts are admitted by both the sides. 3. Respondents opposed the O.A. filed by the petitioners and averred that Government was under no obligations to accept the recommendations of Madan Committee, so far as the petitioners, who were Lecturers in non-engineering subjects were concerned. Their main contention was that non-engineering subjects were not important as the engineering disciplines, in the matter of imparting of education and training to the students of Polytechnics. 4. Learned Tribunal allowed the petition and directed that posts of Senior Lecturers be created in non-engineering subjects, as has been done by the State of Punjab, without specifying the date from which such posts were to be created. We may notice here that the 4… Punjab Government vide Notification dated 5th November 1986, Annexure-A-12, created posts of Senior Lecturers for non-engineering subjects. Since Learned Tribunal did not specify the date in its order from which the post of Senior Lecturers were to be created, petitioners have filed writ petition No. 1243 of 2001, seeking a direction that such post be ordered to be created from the same date, as the post of Senior Lecturers have been created in respect of engineering discipline. 5. The other writ petition has been filed by the respondents seeking the reversal and the setting-aside of the order of the Tribunal. Respondents plea is that the Tribunal’s order amounts to direction for creation of posts, which a Tribunal or even a Court is not competent to direct. 6. We have heard the learned counsel for the parties and gone through the record. Reasoning given by the Tribunal while allowing the Original Application and directing the respondents to create the posts for non-engineering teaching staff on the pattern on which such posts have been created by the Government of Punjab is that implementation of the report of Madan Committee, only in part, i.e. with respect to the teachers of the engineering discipline, is discriminatory, qua the petitioners. Another reason given by the Tribunal is that there are no promotional avenues for the teachers of the non-engineering subjects and that they would retire from the same post to which they are recruited, in case Madan Committee’s recommendation for creation of posts of Senior Lecturers in respect of their subjects is not implemented. 7. Admittedly, Madan Committee made recommendations that in every Polytechnic, out of total number of Lecturers in all the non- 5… engineering subjects, one Lecturer) (the senior most) be designated as Senior Lecturer. It is not in dispute that the pay scale of a Senior Lecturer is higher than that of a Lecturer. This recommendation, it appears was made with a view to creating some promotional avenues for the Lecturers in non-engineering subjects. As regards engineering disciplines, the Committee recommended one Head of the department and one Senior Lecturer in every discipline. Posts of head of department were already in existence in respect of each engineering discipline. Posts of Senior Lecturers were, however, not there. These were created, vide Annexure-A2, which is a notification dated 11.2.1987. However, the teachers of non-engineering subjects were left high and dry, even though recommendation was made by the aforesaid Committee for creation of at least one post of Senior Lecturer presumably to open some promotional avenues for them. 8. There is a judgment of a constitution Bench of Hon’ble Apex Court that state should not discriminate between two classes of employees, while implementing recommendations of pay commission and that if the recommendation is implemented in respect of one class and not in respect of the other, that would be a case of infringement of fundamental right guaranteed by Articles 14 and 16 of the constitution of India. Citation is PURSHOTTAM LAL AND OTHERS vs UNION OF INDIA AND ANOTHER (1973) 1 Supreme Court Cases 651. In our considered view this judgment squarely covers the case of the petitioners because the respondents though implemented the Madan Committee’s recommendation, in full, in the case of engineering discipline teachers, it completely omitted to give benefit of the recommendations of the said committee to the petitioners. We may notice here that the Committee appears to have taken into 6… consideration the fact that the number of teachers for non-engineering subjects was quite small in comparison to the teachers of engineering disciplines and, therefore, while it recommended one post of HOD and one post of Senior Lecturer in every engineering discipline, it recommended only one post of Senior Lecturer for all the teachers in non-engineering subjects in a polytechnic and the respondents denied even this little benefit recommended by the Committee for non- engineering teachers. 9. We also do not find anything wrong with the reasons of the Learned Tribunal that some promotional avenues are required to be created for the petitioners. A three Judges Bench of the Hon’ble Supreme Court in DR MS. O.Z.HUSSAIN vs UNION OF INDIA 1990 (Supp) Supreme Court Cases 688 has observed as follows:- “This Court, has no more that one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other ministries would have the benefit of promotion, the non-medical ‘A’ Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of the officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the ‘A’ category scientists in the non-medical wing of the Directorate.” 10. For the foregoing reasons, we do not find any ground for interfering with the order of the Tribunal, directing the respondents to create posts of Senior Lecturers for non-engineering teachers. 7… Consequently, the writ petition filed by the State of H.P. and Director, Technical Education is dismissed. 11. However, we do feel that the petitioners, most of whom have already retired need to be given the benefit of the Madan Committee’s recommendation from the same day as which the teachers of engineering discipline have been given that benefit by the respondents. As already noticed, vide Annexure-A2, additional posts of Senior Lecturers in engineering discipline have been created by respondent No. 1 w.e.f. 11th February 1987. We see no reasons why the petitioners should also not be given the benefit from the same date, especially when their benefit also flows from the same report, as that given to the engineering discipline teachers. Consequently, writ petition No. 1243 of 2001 is allowed and it is ordered that one Lecturer out of total number of Lecturers of non-engineering subjects in every Polytechnics be designated as Senior Lecturer w.e.f. 11.2.1987, the date from which the report of Madan Committee has been implemented in respect of engineering discipline teachers and the benefit of this direction including financial benefit be given to the petitioners subject to their otherwise being found fit and eligible for the post of Senior Lecturer. We give three months time to the respondents to comply with the aforesaid direction in full. With this modification in the order of the Learned Tribunal, writ petitions are disposed of. ( R.B. Misra ), J ( Surjit Singh ), J November 26, 2008(vs)