HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 4249/2008 Date of Decision: April 10, 2009. Dila Ram & Ors. ……. Petitioners. Versus State of H.P. & Ors. ….. Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting? No. For the petitioners : Mr. Dilip Sharma, Advocate. For respondents 1 to 3 : Mr. R. K. Sharma, Sr. Addl. A.G. with Mr. Vivek Thakur, Addl. A. G. & Mr. Anil Jaswal, Dy. A. G. Sanjay Karol, J. (Oral) In the present petition, the petitioner has prayed for the following relief:- “(i) that the impugned order dated 15.2.1997, Annexure A-2, promoting respondent No.4 to 6 to the post of Centre Head Teacher may kindly be quashed and set aside; (ii) that respondent department may be directed to consider the claim of applicants for promotion to the post of Centre Head Teacher from due date i.e. when respondents No.4 to 6 were promoted, with all consequential benefits; (iii) that if during the pendency of Original Application, if any other Head Teacher, who has been promoted after the promotion of applicants to the post of Head Teacher, is promoted to the post of Centre Head Teacher, in that event the respondent department may be directed to consider the applicants also for such promotion from the dates of promotion of such juniors to the post of Centre Head Teachers, with all consequential benefits; (iv) that if any person junior to applicants is promoted to the post of Block Primary Education Officer during the pendency of this Original Application, in that event 2 applicants may also be directed to be considered for such promotion from the date such juniors are promoted with all consequential benefits; (v) that respondent department may be directed to produce records pertaining to this case for the perusal of this Hon’ble Tribunal; (vi) any other relief deemed proper in the circumstances may also be granted; and (vii) cost of the application may also be awarded. “ The petition was filed on 25.3.1997 and admitted on 7.5.1997. It is the admitted case of the parties that the petitioner has since retired. Private respondents No. 4 to 6 were promoted as Centre Head Teachers on 15.2.1997. Even they have retired. Due to long pendency of the present petition, Mr. Dilip Sharma, learned counsel for the petitioners prays that clause (ii) to (iv) of relief according benefits to the petitioners w.e.f. 15.2.1997 be considered. The petitioners were appointed as JBT teachers (Untrained) with the respondent-Government The Government sponsored them for undertaking training in a JBT Course which they successfully completed. Importantly, for the said period, they were treated on duty and paid full salary of JBT teacher. The State of Himachal Pradesh accorded all benefits of pay fixation to the petitioners from the date of their first appointment. As per seniority list of JBT teachers the petitioners were senior to the private respondents and as such the private respondents herein were placed lower than the petitioners. The petitioners were promoted as Head Teachers from the post of J.B.T. Teachers on the dates mentioned below:- 1. Sh. Dila Ram, Applicant No.1 5.11.1991. 2. Sh. Saligram, Applicant No.2 5.11.1991. 3. Sh. Narain Dutt, Applicant No.3 14.8.1992. 4. Sh. Ganga Ram, Applicant No.4 14.8.1992. 3 5. Sh. Daulat Ram, Applicant No.5 14.8.1992 6. Sh. Hem Chand, Applicant No.6 17.4.1993. 7. Sh. Mehar Chand, Applicant No.7. 17.4.1993. Everything went on well until 5.2.1997 when the State considered the private respondents who were placed junior to the petitioners in the seniority list as Head Teachers for further promotion to the post of Centre Head Teachers. The respondents No.4 to 6 were promoted as Head Teacher w.e.f. 16.6.1994. The petitioners got issued a legal notice on 12.2.1997, but the private respondents were promoted as Centre Head Teachers vide order dated 15.2.1997 (Annexure A-2), also impugned in the present petition. The respondents have opposed the petition stating that for all intents and purposes training in JBT is a material factor for determining the seniority position of the applicants and the respondents No. 4 to 6. Since the petitioners are junior to respondents No.4 to 6 in the matter of Training in JBT thus they were not eligible for promotion to the post of Centre Head Teachers. Therefore, the orders issued by respondent No.3 on 15.2.1997 are valid and in accordance with rules. The petitioners were given seniority from the date of their appointments as untrained teachers which action was found contrary to the provisions of instructions issued by the office of respondents in 1990. Fresh instructions were therefore issued in 1993 and the seniority of JBTs in all districts was asked to be drawn accordingly. It is clear from the seniority list that the petitioners qualified the JBT Training much later than respondents No.4 to 6 and naturally they were junior in JBT cadre of Shimla District than respondents No.4 to 6. The petitioners were promoted prior to respondents No.4 to 6 by giving them the wrong position in the seniority, 4 counting it from their appointment as untrained teachers and on the correction of this mistake respondents No.4 to 6 have rightly been promoted as Centre Head Teachers. On 6.6.1990 a decision was taken by the Govt. in concurrence with the Finance Department. The contents of the same are reproduced as under:- “Regarding giving seniority to emergency Basic Trained/ Untrained J.B.T. etc. teachers from the date of appointment. With reference to your letter No.Shiksha-H(11)(Pr.)2- 78/88-1, dated 6.1.1990 on the subject mentioned above, Governor, Himachal Pradesh is pleased to give seniority to emergency trained for less than one year/one year or two years training and Untrained J.B.T. teachers who have received special certificate etc. from the date of their appointment on the following conditions:- 1. Concerned teachers should be given seniority from the date of appointment as has been done by Punjab Govt. for such teachers. 2. In case as a result of giving such seniority any teacher is entitled for promotion from back date even if he has retired or died while in service then he should be given notional promotion. By doing so, such teacher will be entitled to the benefit of pension and D.C.R.G on the basis of increased pay but he will not be given benefit of pay and allowances; and 3. Director Primary Education should also ensure that while issuing orders in this behalf seniority to all similarly situated teachers should be given on the basis of equality and fair play and nobody should be left out from the spirit of this decision i.e. this decision should be implemented to all such teachers. 5 This has been issued with the concurrence of Finance Department Dy. No. 324-Fin.(C)-B(15)-6/88 dated 5.4.1990.” (Emphasis supplied) The directions were immediately implemented in letter and spirit and benefits given to all eligible employees including the petitioner. Further a clarificatory letter dated 21.9.1993 reads as under was issued by the respondents:- “Sub: Regarding granting seniority from the date of appointment to Emergency basic trained/untrained JBT etc. teacher. Reference your letter No. Shiksha Hamirpur-Pry.(B- 1)16/92) Seniority-153-54 dated 10.4.92 on the subject cited above, it is intimated that the benefit of seniority is only admissible to provincilised cadre (State cadre). You are, therefore, requested that action in the matter be taken immediately. Sd/- Director Pry. Education.” Importantly, the Director has taken a contradictory stand which is evident form his earlier letter dated 26.9.1990, conveying that the letters dated 6.6.1990 and 28.7.1990 do not restrict the applicability of the benefits accorded therein (only to provincilised cadre teachers). The contents of the same are reproduced as under:- “Your attention is invited to your office letter No.Shikha- Kangra (90) Pr.PE-81/Seniority Emergency dated 11th July, 1990 and to state that the matter should be disposed of as per Govt. letter No. Shikha-11-Kh. (13)8/96 dated 6th June, 1990, a copy of which has been sent vide this date Letter No. even dated 28th July, 1990. It is also started that it has nowhere been written in the Govt. letter vide which this provision will be applicable only to provincialised cadre teachers.” 6 It appears that the matter for clarification came up before the Government and the Government directed the Director to take a decision on the basis of earlier letter dated 6.6.1990. Having himself taken the decision on 26.9.1990, there was no basis or necessity for the Director to have formed a different opinion than what he had taken vide his earlier letter dated 6.6.1990. There was no fresh material before him to do so. In this view of the matter, the stand, now taken by the respondents that in view of the clarificatory letter seniority list was revised, is untenable in law. The action of the Director is illegal and unsustainable in law. Importantly, the issue of granting benefits of pay-scale to similarly situated petitioners who had been initially appointed as JBT (Untrained teachers), came up for consideration before the Division Bench of this Court in Civil Writ Petition No.319 of 1997, titled as Hira Lal vs. State of H. P. & Anr., which was decided on 17.6.2008 In Hira Lal (supra), the petitioner joined as Untrained teacher on 4.11.1968. Having sponsored by the Government, he completed his training successfully and claimed salary from his first date of appointment, including the period of his training. Importantly, the Division Bench took notice of the letters dated 15.2.1996 and 6.5.1989 issued by the respondents themselves. The text of letter dated 15.2.1996 reads thus: “As per letter No.Fin. (C-V) (7)-29/88 dated 5.5.1989 from Finance Department on the above subject it has been clarified that for the purpose of placement in senior scales/selection scale from 1.1.1986 the counting is to be done from the date of 1st appointment. A clarification has been given in this regard by this office 7 vide letter No. EDN-B (11) (Pry.) 3-13/89 dated 6.5.89 copy attached. Therefore, the matter may be decided as per the clarification of the finance department referred above.” (Emphasis supplied) Letter dated 6.5.1989 reads as under: “I am directed to say that the pay scales of certain categories of Teachers in the Education Department like Head Master, TGT, Lecturers, B.P.Es. and JBT etc. have been revised w.e.f. 1.1.1986 prescribing three different scales. The inquiries are being received: (i) Whether the period of 8 and 18 years for placement in the Senior Scale and Selection Scale is to be reckoned from 1.1.1986 or since the date they are working on the same post, and (ii) Those teachers who have completed 8/18 years service on or before 1.1.1986 and whose pay has been fixed according to the ready reckoner below minimum of the senior scale and selection scale of these categories whether they will be fixed at the initial of the senior or selection scales. In this connection, the position is clarified as under: i) The period of 8 and 18 years is to be reckoned from the date one is working on the same post, and ii) if an employee on the basis of his length of service on that post qualified for placement in the Senior Scale or the Selection Scale, he will straightaway be placed in that scale irrespective of the fact whether he is drawing less pay than the minimum of that scale. This may be brought to the notice of all concerned.” (Emphasis supplied) Considering the stand taken by the respondents themselves, the Court came to the conclusion that the petitioners were entitled for fixation of their pay w.e.f. 1.1.1986 for the purpose of Senior Scale/ Selection Grade. 8 The aforesaid decision of Division Bench of this Court, in my considered view, squarely covers the matter in issue in the present petition. The respondents have been taking different stand in different proceedings. The promotion of the private respondents No.2 to 4 have been effected on 15.2.1997 ignoring the petitioners. The seniority list was revised behind the petitioners’ back. Final seniority list could not have been revised unless and until the petitioners were heard in the matter. The same was done behind their back in a clandestine manner. Importantly, it had been done after the Director had taken a view which favoured the petitioners, vide letter dated 26.9.1990. The seniority list was revised in violation of and utter disregard of the letters dated 6.6.1990 and 26.9.1990. The Director could not have overruled the decision taken by the State. The subsequent decision of the Director is also not in consonance with the decision of the Government. There is yet another aspect of the matter. There is nothing on record from which it can be even inferred that the benefits to be accorded in terms of Annexure A-2 were confined only to such of those persons who were initially appointed in the provincilised cadre of the State. For the aforesaid reasons, the respondents action in ignoring the petitioners’ claim for being promoted to the post of Centre Head Teachers is illegal. Private respondents admittedly were junior to the petitioner. However, after a long lapse of time, it would not be desirable, at this stage to quash their promotion as Centre Head Teachers. They have since retired. 9 Interest of justice would suffice, if under the facts and circumstances, the respondents are directed to also promote the petitioners as Centre Head teachers w.e.f. 15.2.1997 with all consequential benefits. Ordered accordingly. This Court has taken a similar view in CWP (T) No. 3188/2008, titled as Manmohan Prashad vs. State of H.P. and others, decided on 1.4.2009. The respondents shall take action and pay the arrears within a period of four months from today. If however, the payment is not made within the said period, thereafter the petitioner shall be entitled to interest @ 9%. The petition is disposed of accordingly. (Sanjay Karol), Judge. April 10, 2009. (rana)