L.P.A. No.790 of 2011 {1} In the High Court of Punjab and Haryana at Chandigarh L.P.A. No.790 of 2011 (O&M) Date of Decision: May 12, 2011 State of Haryana and another ---Appellants versus Haryana Private Colleges Non-Teaching Employees Union(Regd.) through its President Baljeet Singh ---Respondent Coram: HON'BLE MR. JUSTICE M.M.KUMAR HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Aman Chaudhary, Addl. Advocate General , Haryana, for the appellants Mr. R.K.Malik, Sr.Advocate with Mr. Surya Partap Singh, Advocate, for the caveator-respondent *** 1. To be referred to the Reporter or not? 2. Whether the judgment should be reported in the Digest? M.M.Kumar, J. 1. The instant appeal under Clause X of the Letters Patent is directed against the judgment dated 10.11.2010 rendered by learned Single Judge holding that the non-teaching employees working in the non-Government private aided schools would be entitled to the benefit of Haryana Civil Services (Assured Career Progression)Rules, 1998(for brevity “the Rules”) L.P.A. No.790 of 2011 {2} framed by the appellant -State under Proviso to Article 309 of the Constitution which were notified on 7.1.1998. 2. The 'Rules' incorporate the principles laid down in various judgments delivered by Hon'ble the Supreme Court laying down that a large number of employees keep on stagnating on one post and some times they retired from the same post. Firstly a thinking developed on the part of the Central Pay Commission, then these principles have been followed by enacting 'Rules' or instructions. In the wake of various judgments of Hon'ble the Supreme Court rendered in the cases of Council of Scientific & Industrial Research v K.G.S.Bhatt 1989(4) SCC 635 and O.Z.Hussain (Dr.) v Union of India 1990 Supp. SCC 688. In K.G.S. Bhatt's case (supra) their Lordships of the Supreme Court although found some sustainable arguments advanced by the CSIR to set aside the order of the Central Administrative Tribunal yet it refused to grant relief. The Tribunal had directed the CSIR to consider and promote its employees despite the fact that there was no specific provision in the bye-law 71(b)(ii) of the CSIR. The basic reason probably for that thinking is discernible from the perusal of para 9 of the judgment, which reads as under:- “ XXX XXX XXX XXX This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It L.P.A. No.790 of 2011 {3} is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. “The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors”. There cannot be any modern management much less any career planning, manpower development, management development etc. which is not related to a system of promotions. The appellant appears to have overlooked this basic requirement of management so far as respondent 1 was concerned till NR & AS was introduced.” (emphasis supplied) 3. The catalyst approach developed in K.G.S.Bhatt's case(supra) to further was given a fillip when in O.Z.Hussain's case (supra)this proposition was put even more profoundly linking promotion and efficiency. In para 8 of the judgment the aforesaid view has been expressed which reads thus:- “This writ petition is allowed and the following directions are issued:- 1. Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services; (2)These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and L.P.A. No.790 of 2011 {4} conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. April 1, 1989; (3)Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.” 4. In all probability the Central Government took clue from these judgments and framed a scheme so as to comply with the spirit of the aforesaid judgments. According to the aforesaid judgments, for bringing efficiency in administration, a satisfied bureaucracy is necessary and two promotions in a career of an employee were expected to be a safe formula. 5. Following in spirit the principles, the State of Haryana firstly, issued instructions on 8.2.1994 which were aimed at breaking stagnation. The aforesaid instructions became subject matter of proceedings before this Court which eventually culminated in judgment of Hon'ble the Supreme Court rendered in the State of Haryana and others v. Champa Devi and others 2002(10) SCC 78. In the aforesaid judgment, the view earlier taken by Hon'ble the Supreme Court in the cases of Haryana State Adhyapak Sangh and others v. State of Haryana and others (1988)4 SCC 571, State of Haryana and others v. Rajpal Sharma and others(1996)5 SCC 273 and Haryana State Adhyapak Sangh and others v. State of Haryana 1990 (Supp.)SCC 306 was reiterated. In the aforesaid judgments, it is laid down that the pay scale of the employees working in privately managed schools would be equivalent to their counter parts working in the Government schools. It was clarified that such employees would not be entitled to any allowances except Dearness Allowance. In other words, the allowances like HRA, CCA and other cognate allowances were not to be given to such employees working in the L.P.A. No.790 of 2011 {5} aided schools. However, the fact remains that the parity in the pay scale was to be maintained with the employees who are working in Government schools. Before this Court, the learned State counsel had conceded that the circular issued by the respondent-State of Haryana on 8.2.1994, pertains to scale of pay of employees. However, the concession so given by the respondent-State was contested before Hon'ble the Supreme Court and the argument raised was that the circular dated 8.2.1994, in addition to three other circulars, was in the nature of incentive to the Government employees to remove the stagnation at a particular stage. It was argued before Hon'ble the Supreme Court that the High Court was in error in granting the relief by extending the benefit of pay scale to the employees working in privately managed schools and by giving them the parity of pay scale with their counter parts working in the Government schools. However, the aforesaid argument was not accepted and the observations of their Lordships of Hon'ble the Supreme Court in paras 5 and 6 of the judgment reads thus:- “5. Be it stated that even though no counter affidavit had been filed by the State in the High Court and a concession was made by the counsel appearing for the State, stating that the circular dated 8.2.1994 is in relation to the scale of pay of a teacher, in the special leave petitions filed in this Court by the State, no ground had been taken that no such concession had been made. Though in course of hearing of these appeal, Mr. Anand vehemently contended that the concession on a question of law should not bind the State in assailing that concession in this Court and further the circular dated 8.2.1994 is in the nature of a stagnation/promotion policy intended for those employees who have not been able to get higher promotion notwithstanding having rendered certain years of L.P.A. No.790 of 2011 {6} service and, therefore, the benefit flowing from such circular cannot be conferred on the teachers of privately managed schools, but on examining the circular dated 8.2.1994, which was annexed as Annexure P-7 to the writ petition filed before the High Court, we have no manner of doubt that it relates to a higher scale of pay and, therefore, in our considered opinion, the concession of the State counsel before the High Court was well founded and we see no infirmity with the impugned judgment of the High Court proceeding on the basis of the aforesaid concession. This Court in Haryana Adhyapak Sangh's case (supra) has unequivocally indicated that the teachers of aided schools must be paid the same scales and dearness allowance as teachers of Government schools. In Rajpal Sharma's case (supra), the same principle has been @@ reiterated. That being the position, the conclusion of the High Court that the teachers of the private schools would be entitled to the benefits of the circular dated 8.2.1994 is unassailable and we, therefore, sustain that part of the conclusion of the impugned judgment. Coming, however, to the question as to whether the benefits given to the Government employees under the circulars dated 14.5.1991, 7.8.1992 and 7.1.1994 which were annexed as Annexures P-3, P-4 and P-6, we are of the considered opinion that the High Court committed error in granting the benefits of those circulars to the employees of private schools. In State of Punjab & Ors v. Om Prakash Kaushal & Ors (1996) 5 SCC 325, a Bench of this Court examined the question as to what is the true meaning of “partly in employment” and ultimately came to the conclusion that all incentives granted to the employees of the L.P.A. No.790 of 2011 {7} Government cannot be claimed as a matter right by the employee under the private management, as that would not be within the expression”partly in employment”. The Court unequivocally said that the scale of pay and the dearness allowance to a Government servant or the teacher of a Government school can be claimed as a matter of right by the teachers of a private school and not other incentives which the Government might be intending to confer on its own employees. This being the position and on examining the aforesaid three circulars which were annexed as P-3, P-4 and P-6 in the writ petition filed before the High Court, we are of the considered opinion that the High Court committed error in granting the benefit of those circulars also to the teachers of the privately managed schools. We, therefore, set aside that part of the conclusion in the impugned judgment. 6. In the course of arguments, Mr. Anand, appearing for the State of Haryana, placed before us the subsequent Rules framed under Proviso to Article 309 of the Constitution of India in sup[port of his contention that even the so-called pay scale granted by the circular dated 8.2.1994 would not be available to the teachers of the private schools. We, however, do not express any opinion as to the effect of the aforesaid Rules framed under the proviso to Article 309 of the Constitution and parties should work-out remedies available to them under the said Rules.” 6. It is thus evident that Hon'ble the Supreme Court refused to grant the benefit of incentives/allowances emanating from other three circulars to the employees working in the privately aided schools but still granted the benefit of scale of pay emanating from circular dated 8.2.1994. L.P.A. No.790 of 2011 {8} 7. When the matter came up before the learned Single Judge, circular dated 12.10.1998(Annexure P-2) read with the judgment, rendered in Champa Devi's case (supra) was cited and the learned Single Judge on the basis of the observations made in Champa Devi's case (supra) by Hon'ble the Supreme Court, has concluded that the circular dated 12.10.1998, in fact extend the benefit of scale of pay to employees working in private aided colleges. 8. Mr. Aman Chaudhary, learned Addl. Advocate General, Haryana, assailed the findings recorded by the learned Single Judge. Firstly, he has submitted that the question with regard to extending the benefit of the ACP Rules, framed under Proviso to Article 309 of the Constitution, was left open by Hon'ble the Supreme Court, as is evident from the perusal of para 6 of the judgment. According to learned counsel had it been so simple, then there was no impediment in the ways of Hon'ble the Supreme Court to express the view which has been taken by the learned Single Judge in the impugned judgment. The other argument raised by learned State counsel that circular dated 12.10.1998 does not envisage the grant of benefit to the non-teaching employees working in privately aided colleges. According to learned counsel, clause 2 of the circular did not include the employees working in Government aided colleges/schools, by the Finance Department of the appellant-state. Likewise, he is placing reliance on the letter dated 14.1.1999(Annexure A-1), which has been sent by the Director of Higher Education, Haryana, Chandigarh, to all the Principals of Private Affiliated Colleges in Haryana State to argue that the appellant-state never understood the circular dated 12.10.1998 to have included the employees working in Government aid schools/colleges. 9. We have thoughtfully considered the submissions made by the learned State counsel. However, we regret our inability to accept the same. On a broader principle the view taken by Hon'ble the Supreme Court in Haryana L.P.A. No.790 of 2011 {9} Adhyapak Sangh's cases (supra) has to be kept in the background which in unequivocal term laid down that the employees including teachers working in Government privately aided schools are entitled to parity in pay scales with their counter parts who are working in the Government schools. If the aforesaid broader principle is kept in view, then no doubt is left with the true ratio of the judgment rendered in Champa Devi's case (supra). The judgment has to be interpreted to mean that the benefit of pay scale has to be granted even to those who are working in Government privately aided schools as further clarified by the circular issued on 8.2.1994. Once the benefit of circular dated 8.2.1994 has been extended to the teachers working in Government aided schools then there is hardly any option not to grant the same benefit which emanates from 1998 Rules. It is true that Hon'ble the Supreme Court in Champa Devi's case (supra) has left open the question in para 6 of the judgment by stating that their Lordships did not wish to express any opinion as to the effect of the statutory Rules, 1998, framed under the proviso to Article 309 of the Constitution. However, we do not entertain any doubt that by parity of reasoning and in the light of the broader principle laid down by Hon'ble the Supreme Court in two judgments of Haryana Adyapak Sangh's (supra), the pay scale of employees and teachers working in Government aided school have to be identical, although they may not be entitled to the benefit of HRA, CCA and medical allowance etc. The argument of Mr. Chaudhary is that clause 2 of circular dated 12.10.1998(Annexure P-2) did not expressly include non-teaching employees working in Government aided colleges. We do not feel persuaded by the aforesaid submission. The reason for rejecting the contention is that in the opening part of the circular dated 12.10.1998, it has been specifically mentioned that the Pay Revision Committee was constituted to revise the pay scales of various categories of L.P.A. No.790 of 2011 {10} employees which include the employees working in Government aided colleges on the pattern of pay scales approved by the State Government for its own employees. Once in the opening para, it has been clarified, then the subsequent para would take colour from the aforesaid para unless expressly excluded, The principle of statutory interpretation known as ejusdem generis would be applicable in such like situation. Therefore, we do not find any merit in the contention raised by learned State counsel. Likewise, the contention raised on the basis of letter dated 14.1.1991, issued by the Director of Higher Education Haryana to all the Principals of Private Affiliated Colleges would also not come to the rescue of the appellant-State. To say that all the non- teaching employees were excluded from the benefit of 1998 Rules, would be far from a correct position on fact as well as law. Accordingly, we do not find any merit even in the second contention raised by the learned State counsel. 10. For the reasons stated above, this appeal fails and the same is hereby dismissed. (M.M.KUMAR) JUDGE (GURDEV SINGH) JUDGE May 12, 2011 PARAMJIT