IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 300 of 2006 (S/B) State of Uttarakhand & others. .……… Petitioners Versus Govind Ram Naudiyal & another. ……… Respondents Mr. K.P. Upadhyaya, Addl. Chief Standing Counsel for the petitioners. Mr. Shailendra Nauriyal, Advocate for respondent No. 1. Coram: Hon’ble J.S. Khehar, C.J. Hon’ble Tarun Agarwala, J. J.S. KHEHAR, C. J. Respondent No. 1 Govind Ram Naudiyal was appointed as a trained graduate Head Master at the Janta Junior High School, Mauj Khal, District Pauri Garhwal, on 01.07.1974. The Basic Shiksha Adhikari approved the aforesaid appointment. During the course of his employment, the Manager, Janta Junior High School, confirmed him as the Head Master in the LT Grade, with effect from 01.07.1975. The Janta Junior High School was upgraded and provincialised by the State of Uttar Pradesh vide an order dated 19.10.1978. At the time of provincialisation on 19.10.1978, the State Government also created one post of Head Master (in the scale of Rs. 450- 900), five posts of Assistant Teachers (in the scale of Rs. 300-550) and five posts of Assistant Teachers (in the scale of Rs. 250-420). Subsequent to the upgradation and provincialisation of the Janta Junior High School, the respondent Govind Ram Naudiyal was placed in the CT Grade, although he was working in the LT Grade. It is not a matter of dispute, that consequent upon the provincialisation of the Janta Junior High School, not only there were posts available in the LT Grade and Govind Ram Naudiyal- respondent No. 1 was eligible for appointment in the LT Grade in terms of the prescribed qualifications, but Govind Ram Naudiyal-respondent No. 1 was actually required to discharge his duties in the LT Grade as Head Master. 2. Respondent No. 1-Govind Ram Naudiyal, accordingly raised a claim for the grant of salary in the LT Grade by filing a claim petition. The aforesaid claim petition came to be allowed by the Public Services Tribunal, Uttarakhand, vide an order dated 19.11.2003, inasmuch as, 2 respondent No. 1 was found to be entitled to be posted in the LT Grade from the date of take over of the Janta Junior High School, Mauj Khal, district Pauri Garhwal, as also pay and allowances in the scale of the said post. 3. The order dated 19.11.2003 passed by the Public Services Tribunal, Uttarakhand, has been impugned by the State Government through the present writ petition. 4. During the course of hearing, the solitary contention raised on behalf of the petitioners was, that the entitlement of respondent No. 1 on the issue of appointment and pay scales was liable to be determined on the basis of the Government Order dated 19.10.1978. It was pointed out, that the Public Services Tribunal, Uttarakhand, had adjudicated upon the matter without even making a reference to the Government Order dated 19.10.1978. It was, therefore, submitted, that the order passed by the Public Services Tribunal, Uttarakhand, was liable to be set aside. 5. We have considered the solitary contention advanced by the learned counsel for the petitioners on the basis of the Government Order dated 19.10.1978. A copy of the aforesaid Government Order is available on the record of this case as Annexure No. RA. During the course of hearing, pointed attention of this Court was invited to paragraphs 4 & 5 of the aforesaid Government Order. A perusal of paragraph 4 of the aforesaid order reveals, that under the mandate of the Government Order, dearness allowance as also all other allowances were admissible / payable to all employees holding sanctioned posts. In paragraph 4, it was expressly provided, that all posts created by the Government Order would be treated to be cadre posts of the Education Department. Insofar as paragraph 5 is concerned, the Government Order explicitly provided, that the existing staff of the Institute, i.e. the actual staff working in the upgraded and provincialised school, possessing the prescribed qualifications, would be temporarily appointed against sanctioned posts, though their regular absorption would have to await the declaration of their suitability by the competent authority or by the Public Service Commission. The Government Order also clarified, that those engaged in the school prior to 3 the issuance of the Government Order, not possessing the prescribed qualifications, would not be entitled to regular absorption. According to the learned counsel for the petitioners, the claim of respondent No. 1 for appointment in the LT Grade was liable to be considered in the background of the conditions stipulated in paragraphs 4 & 5 (noticed herein above). It was pointed out, that the Tribunal while passing the impugned order dated 19.11.2003, did not consider any of the aforesaid issues before arriving at the conclusion, that respondent No. 1 was entitled to be appointed in the LT Grade. 6. We have considered the solitary contention advanced by the learned counsel for the petitioners. During the course of hearing, it was not the case of the petitioners, that respondent No. 1 did not fulfill the conditions stipulated in the Government Order dated 19.10.1978, but only that, the Tribunal, during the course of adjudication, did not record a finding that respondent No. 1 satisfied the prescribed conditions. In the circumstances of this case, two courses of action are available to us, firstly, to remand the matter again for reconsideration of the claim of respondent No. 1 to the Tribunal as per the parameters laid down in the Government Order dated 19.10.1978. Alternatively, it is open to us to determine from the admitted factual position, whether or not, respondent No. 1 was entitled to be appointed in the LT Grade after the upgradation and provincialisation of the Janta Junior High School, Mauj Khal. In the peculiar facts and circumstances of the present case, we have chosen to adopt the later alternative. 7. It is not disputed that, in the first instance, respondent No. 1 was appointed by the Manager, Janta Junior High School, Mauj Khal, as a trained graduate Head Master on 01.07.1974. The aforesaid authority, thereafter, confirmed respondent No. 1 against the post of Head Master in the LT Grade w.e.f. 01.07.1975. The appointment of the respondent No. 1- Govind Ram Naudiyal, was approved by the Basic Shiksha Adhikari. This was the status of respondent No. 1 at the time of upgradation and provincialisation of the Janta Junior High School, Mauj Khal. According to the conditions stipulated in paragraph 5 of the Government Order dated 19.10.1978, there can be no doubt, that respondent No. 1 was actually 4 working in the Janta Junior High School, Mauj Khal, as Head Master in the LT Grade, at the time of upgradation and provincialisation of the School. There is also no dispute, that there were posts available in the LT Grade, when the Janta Junior High School, Mauj Khal, was upgraded and provincialised. It is also not the case of the petitioners-State Government, that respondent No. 1 did not fulfill the qualifications for appointment in the LT Grade. Thus, we are satisfied, that respondent No. 1 was entitled to appointment, firstly on temporary basis in the LT Grade, and thereafter, for regular absorption on his being declared suitable by the competent authority or the Public Service Commission, after the upgradation and provincialisation of the said school. Irrespective of the nature of his appointment, namely, on temporary basis or on regular absorption (as per paragraph 5 of the Government Order dated 19.10.1978), insofar as pay and allowances are concerned, his entitlement had to be determined with reference to paragraph 4 of the Government Order dated 19.10.1978. As per paragraph 4 of the Government Order dated 19.10.1978, all persons holding sanctioned posts, were entitled to pay and allowances admissible to the said posts. Before the issuance of the Government Order dated 19.10.1978, as also thereafter, respondent No. 1 was discharging duties in the LT Grade. Subsequent to the upgradation and provincialisation of the Janta Junior High School, Mauj Khal, posts in the LT Grade were available and respondent No. 1 was appointed against the same. Whether his appointment was to be treated as on temporary basis or on regular basis, he was entitled to the pay-scale and allowances of the post against which he was discharging his duties. Undoubtedly, he was discharging duties, before and after the process of upgradation and provincialisation, in the LT Grade, and as such, he was entitled to pay and allowances in the said Grade. We, therefore, find no infirmity in the impugned order dated 19.11.2003 passed by the Public Services Tribunal, Uttarakhand. 8. Irrespective of the fact that only one contention was advanced by the learned counsel for the petitioners, it would be pertinent to mention, that during the course of hearing, reliance was placed by the learned counsel for the petitioners on the decision rendered in State of H.P. Vs. Suresh Kumar Verma and others (1996) 7 SCC 562, wherein, on the issue of reemployment of an individual appointed on daily wages, dehors the 5 recruitment rules, whose services had been terminated due to the completion of the project, it was held by the Apex Court, that relief could not be granted to the respondent therein merely on account of the fact that vacancies were available. Therefore, it was contended in the facts and circumstances of this case, that merely because certain additional posts came to be created on the issuance of the Government Order, would not render respondent No. 1 eligible for appointment against the available post or salary of the scale of the said available post. 9. We have considered the contention advanced by the learned counsel for the petitioner on the basis of the judgment of the Apex Court referred to herein above. We, however, find no merit therein. It cannot be stated, in the facts and circumstances of the present case, that the appointment of respondent No. 1, at the time of his induction into the service of the Janta Junior High School, Mauj Khal, district Pauri Garhwal, was either irregular or dehors the rules. In fact, no such submission has been advanced by the learned counsel for the petitioners in this case. The only question that arises for determination in the present controversy is, whether consequent upon the upgradation and provincialisation of the Janta Junior High School, respondent No. 1 would be entitled to be appointed in the LT Grade, as also, whether he would be entitled to the scale of the available post in the LT Grade. Having dealt with the instant issue, we have already arrived at the conclusion herein above, that respondent No. 1 fulfilled all conditions of appointment to the LT Grade. After the upgradation and provincialisation, he was entitled to continue in the LT Grade, as sanctioned posts in the said Grade were available. Therefore, we have also arrived at the conclusion, that respondent No. 1 was entitled to pay and allowances in the LT Grade. Accordingly, we are satisfied, that the judgment relied upon by the learned counsel for the petitioners would be wholly inapplicable to the facts and circumstances of the present case. 10. At this juncture, it is also relevant to mention, that in identical circumstances, the claim of one Daulat Ram Sharma was adjudicated upon by this Court while disposing of Writ Petition (S/S) No. 2134 of 2001 (decided on 24.06.2004), wherein this Court, in similar circumstances, arrived at the conclusion that the petitioner Daulat Ram Sharma was 6 entitled to appointment as well as salary in the LT Grade. The decision rendered by this Court in Writ Petition (S/S) No. 2134 of 2001 was assailed by the State Government through Special Appeal No. 122 of 2006. The aforesaid Special Appeal was, however, dismissed by this Court on 03.12.2009. The controversy raised and adjudicated upon in Special Appeal is akin to the controversy raised in the present writ petition. Therefore, the issues raised by the petitioners in the present writ petition are liable to be rejected for the same reasons as were expressed by this Court while disposing of Special Appeal No. 122 of 2006 (State of Uttarakhand and others Vs. Daulat Ram Sharma, decided on 03.12.2009). This is in fact the conclusion arrived by us in the foregoing paragraph. 11. For the reasons recorded herein above, we find no merit in this writ petition and the same is accordingly dismissed. (Tarun Agarwala, J.) (J.S. Khehar, C. J.) 04.12.2009 04.12.2009 G