CWP No. 15538 of 2004 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 15538 of 2004 Date of decision 17 .7.2009 Vijay Kumar Monga ... Petitioner Versus State of Punjab and others ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kapil Kakkar ,Advocate for the petitioner Mr. Chetan Mittal, Addl. AG Punjab 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The petitioner has been a school lecturer. He approached this Court with a prayer for quashing order dated 27.8.2004 (P.8) passed by the District Education Officer (S), Ferozepur withdrawing his earlier order dated 9.10.2001 (P.7) fixing his pay on the analogy that as a school lecturer he was to be granted protection of pay last drawn in his earlier cadre of Masters. Brief facts necessary for the disposal of the controversy raised in this case are, that on 12.5.1980 the petitioner was appointed as Hindi Master against an aided post in S.D.Senior Secondary School, Fazilka which is a government aided school. However, the competent authority granted its approval to his appointment on 16.7.1980. He continued to work on the post of Hindi Master till 1994. On 28.12.1994 the respondent- Education Department issued an advertisement inviting applications to fill CWP No. 15538 of 2004 2 up 1000 posts of school lecturers in different subjects by way of direct recruitment. The petitioner fulfilled the necessary qualification of M.A. (Pol. Science) M.A.B.Ed. He accordingly submitted an application through proper channel for consideration of his case for appointment to the post of school Lecturer. His application was duly forwarded by the Principal of S.D.Senior Secondary School, Fazilka to the competent authority. Eventually the petitioner was selected and was appointed as Lecturer in Political Science on 3.12.1996. He was relieved from S.D.Senior Secondary School, Fazilka on 4.12.1996 (AN). On 7.10.1997, the petitioner represented the respondent to protect his pay which he was drawing before joining his post as Lecturer in the Government school. The District Education Officer passed an order on 9.10.2001 (P7) on the representation made by the petitioner. The aforesaid order makes an interesting reading, which is as under: “ Sent back in original and it is informed that the employee had sent his case through proper channel. So as per service book by giving the benefit of previous service under Rule 12 of the Punjab Education Code Service of Security Act his pay be protected.” However, the aforesaid order was withdrawn by the District Education Officer on 27.8.2004 (P/8). The respondents had filed written statement and have taken the stand that prior to joining government service as school lecturer the petitioner was working in a privately managed aided school. His services were governed under different set of rules and the Management Committee of that school was his appointing/ punishing authority. The respondents CWP No. 15538 of 2004 3 have placed reliance on a judgement of Hon'ble the Supreme Court rendered on 28.8.1995 in the case of State of Punjab v. Dev Dutt Kaushal 1995 (supp. (4) SCC 748. The respondents have also asserted that no pay protection was admissible to the petitioner as no benefit of any service in the government aided school could be given to him and therefore the impugned order dated 27.8.2008 has been rightly passed. We have heard learned counsel for the parties and have perused the paper book with their able assistance. Mr. Kapil Kakkar, learned counsel for the petitioner has argued that the petitioner would be entitled to protection of his last drawn pay as Master on the basis of instructions dated 15.11.2000 (P.9). According to the learned counsel 1st para of the instructions fully covers his case because pay protection is granted after an employee has held the post in some other department or body whether incorporated or not provided it is wholly or substantially financed by the Government. The argument is that the petitioner was working as 'Master' in an aided school and on an aided post, therefore, instructions are applicable. Moreover, the learned counsel maintained that the petitioner's application for appointment as School Lecturer was sent through proper channel and no forfeiture of his earlier service would be involved for pension. Learned counsel has further submitted that principles of natural justice were not complied with before withdrawing the earlier order dated 9.10.2001 (P7) granting protection to his last drawn pay. Mr. Chetan Mittal, learned State counsel has, however submitted that the order has been withdrawn lawfully because the petitioner was not entitled to protection of his pay in respect of the service rendered by CWP No. 15538 of 2004 4 him in an aided school on an aided post. He has also argued that there is no rule or instructions under which protection to his last pay drawn could be accorded . After hearing learned counsel for the parties and perusing the record, we feel that it would first be necessary to examine the viability of applying instructions dated 15.11.200o (P.9) to the case of the petitioner. Paragraph 1 of the instructions on which reliance has been placed reads as under: “ I am directed to refer to the subject noted above and to say that a number of references are being received from various departments for protection of pay of employees who are already in Government service, and are appointed to another service/ cadre by way of transfer/ open selection as per the service rules to each service cadre. According to existing proviso below Rules 4.4(b) of Punjab Service Rules Vo.l. I Part I if an employee has held a post in the same or identical time scale in some other departments or body whether incorporated or not which is wholly or substantially financed by the Government, his pay on appointment in the Government service is to be fixed at the same level. Cases are now arising where an employee before being selected for a post under the State Government is drawing in higher pay scale/senior scale or selection pay scale. Apparently, the present proviso below Rule 4.4(b) do not permit protection of pay in such cases. However, it is felt when a person already in service is selected under the Government through proper channel his past service should not be washed CWP No. 15538 of 2004 5 out so far as fixation of pay in the new post is concerned. However, such an employee cannot count this period towards seniority which disturbs the legal right of the officials already senior in the service.” The purpose of issuing the aforesaid instructions was to clarify the principles governing protection of pay of an employee who was already in government service and then appointed to another service/ cadre by way of transfer/ or selection as per the service rules. It becomes clear from further perusal of the instructions that they were to apply to an employee who is holding the post in the same or identical time scale in some other department or body whether incorporated or not provided it is wholly or substantially financed by the Government. If such an employee is appointed to the Government service then it was required to fix his pay at the same level. Moreover the instructions have been issued to protect an employee if he was earlier working in the higher pay scale, senior scale or selection grade then his pay scale might need protection. We are unable to accept the submission of the learned counsel for the petitioner regarding application of the aforesaid instructions to the present case. Assuming that the instructions apply to a Master who is working in a privately aided school like the petitioner when he is appointed to the higher post of school lecturer by direct recruitment in a government school then a school lecturer is entitled to benefits of the instructions only if he had held the post in the same or identical time scale. In the present case, the pay scale of the petitioner w.e.f. 1.1.1996 was 1640-2925 whereas a perusal of his appointment letter on the post of School Lecturer shows that pay scale of the post of Lecturer w.e.f. 1.1.1996 was Rs.1800-3200 CWP No. 15538 of 2004 6 which is in higher pay scale. The requirement of instructions is that either such an employee should be working in the same or identical time scale in some other department or a body which is wholly or substantially financed by the Government. In this case we are not concerned with the other case covered by the instructions namely if an employee before being selected by the State Government had been drawing higher pay scale/ senior pay scale/ selection pay scale. Obviously that is not the issue before us emerging from the facts of the present case. The petitioner was working as Master in the pay scale of 1640-2925 whereas he was appointed on the higher pay scale of 1800-3200 on the post of Lecturer (School cadre). Therefore, the first argument raised by the petitioner is liable to be rejected. The reliance of the State of Punjab on the judgement of Hon'ble the Supreme Court in Dev Dutt Kaushal's case (supra) is wholly mis-placed. The ratio of the judgement is that where a privately aided institution is taken over it would depend upon the terms and conditions of the deed of taking over or gift deed executed between the management of the privately aided institution / school/ college and the Government, as to whether the service of an employee rendered in that private institution is to count for the purposes of seniority, pension , pay etc. Therefore the judgement in Dev Dutt Kaushal's case (supra) is not relevant to the issue raised in the instant petition. The question then is whether the principles of natural justice have been violated. It is true that no notice before passing the order dated 27.8.2004 (P8) was given. It is mandatory to give such a notice. The course adopted by the respondents is not prohibited. It is well settled that non compliance of the principles of natural justice would not be necessary if by CWP No. 15538 of 2004 7 quashing an order passed against a citizen would result in revival of an illegal order passed. In such cases, there is no equitable and legal obligation cast on the Courts to quash such an order and then permit revival of an illegal order. In this regard reliance may be placed on a judgement of Hon'ble the Supreme Court in the case of Gadde Venkateswara Rao v. State of Andhra Pradesh AIR 1966 SC 828. The Hon'ble Supreme Court refused to grant relief on the ground of violation of principles of natural justice upholding the view of the High Court for not interfering under Article 226 of the Constitution, Hon'ble Mr. Justice Subba Rao (as His Lordship then was) observed in para as under: “18. ................... "Both the orders of the Government, namely, the order dated March 7, 1962 and that dated April 18, 1963, were not legally passed : the former, because it was made without giving notice to the Panchayat Samithi, and the latter, because the Government had no power under Section 72 of the Act to review an order made under Section 62 of the Act and also because it did not give notice to the representatives of Dharmaji-gudem village.” His Lordship concluded as follows : "In those circumstances, was it a case for the High Court to interfere in its discretion and quash the order of the Government dated April 18, 1963? If the High Court had quashed the said order, it would have restored an illegal order - it would have given the Health Centre to a village contrary to the valid resolutions passed by the Panchayat Samithi. The High Court, therefore, in our view, rightly refused to exercise CWP No. 15538 of 2004 8 its extraordinary discretionary power in the circumstances of the case." (emphasis added) The aforesaid view has also been followed in the case of M.C.Mehta v. Union of India 1999(6) SCC 237 wherein it was held that judgement in Gadde Venkateswara Rao's case (supra) is an authority for the proposition that it is not always incumbent on the Courts to quash an order merely because it is against the principles of natural justice. The following para substantiates the proposition of law. “The above case is clear authority for the proposition that it is not always necessary for the Court to strike down an order merely because the order has been passed against the petitioner in breach of natural justice. The Court can under Article 32 or Article 226 refuse to exercise its discretion of striking down the order if such striking down will result in restoration of another order passed earlier in favour of the petitioner and against the opposite party, in violation of principles of natural justice or is otherwise not in accordance with law.” It has thus become obvious that principles of natural justice cannot always form anchor sheet of the petitioner to attack an order invoking jurisdiction of this Court under Article 226 of the Constitution as quashing of such an order on that ground would result into revival of an illegal order. The rationale of the principle appears to be that quashing such an order would involve a futile exercise and empty formality because after notice it would result in passing a similar order again. The policy of law as well as precedent supporting the aforesaid principle do not need any further elaboration. CWP No. 15538 of 2004 9 In the present case, the order dated 9.10.2001 was passed by the District Education Officer and it was withdrawn by the same officer. It is further evident that the petitioner was appointed on the post of Lecturer (School cadre) by the Director of Public Instructions on 3.12.1996 (P4) who is infact the appointing authority of the petitioner as per Rule 8 of the Punjab State Education- Class III (School Cadre) Service Rules, 1978. Therefore, any order for according pay protection could not have been passed by the District Education Officer, who lacks competence. Moreover, his pay protection in any case could not be accorded as there is neither any rule nor any instructions supporting the view that if an employee by direct recruitment is appointed to a higher post carrying higher pay scale then he is to be granted protection of pay. Such a situation firstly would not arise in practical terms because it would lead to a serious anomaly in pay scale. For example if an employee working in the lower scale on a lower post start getting more pay than his starting pay in the higher pay scale of the higher post then it means in the lower post itself his pay would be better. Such a situation is not contemplated. Therefore, this petition lacks merit and is thus liable to be dismissed. For the reasons afore mentioned this petition fails and the same is dismissed. (M.M.Kumar) Judge (Jaswant Singh) 17.7.2009 Judge okg