SCA/718/1997 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 718 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.S.DAVE ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== DAKSHABEN I DAVE Versus STATE OF GUJARAT & others ====================================== Appearance : Mr. D.G. Chauhan for the petitioner Mr. L.B.Dabhi, Assistant Government Pleader, for respondent No.1 ====================================== CORAM : HONOURABLE MR.JUSTICE A.S.DAVE Date : 02/09/2006 ORAL JUDGMENT 1. This petition under Articles 226 and 227 of the Constitution of India is filed against refusal to pay higher pay-scale of Rs.550-900 SCA/718/1997 2/7 JUDGMENT of Higher Secondary School Teacher (English) from the date of her appointment, as arbitrary, discriminatory, illegal and violative of Articles 14 and 16 of the Constitution of India. 2. It is the case of the petitioner that, having qualified as trained English teacher with B.A. B.Ed. (English), initially, the petitioner was appointed by order dated 16th November 1977 as an Assistant Teacher in the pay-scale of Rs.450-750 on certain conditions. That, pursuant to the above appointment, the petitioner continued to discharge her duties as Assistant Teacher and, occasionally, she was given duties to impart education in the Higher Secondary section also on monthly payment of Rs.50 as allowance. That, respondent No.4, Head Mistress of Bai Sahebba Girls High School submitted a proposal to respondent No.3, District Education Officer, Rajkot, for granting upgradation of pay-scale of Rs.1400- 2600 to Rs.1640-2900 (revised pay Rs.1850) and, accordingly, the said proposal was accepted by respondent No.3 by order dated 27th July 1990 and pay-scale of the petitioner was sanctioned and upgraded in pay-scale of Rs.1400-2600 to Rs.2640-2900 (revised pay Rs.1850) with effect from 1st August 1990 as Higher Secondary English Teacher. However, a representation was made by the petitioner on 8th July 1991 to grant continuity of service from 16th June 1978 as teacher in Higher Secondary Section and pay of the petitioner to be fixed accordingly. A proposal was sent by respondent No.4 on 28th November 1991 to respondent No.3 and, thereafter, respondent No.4, by order dated 5th December 1991, fixed the pay of the petitioner in the pay-scale of Rs.1640- 2900 as on 1st July 1979 and the period from 1st July 1979 to 31st July 1990 was treated as 'notional' and no arrears was to be paid for the above period. It is to be noted that the above order was passed subject to the approval of the District Education officer, SCA/718/1997 3/7 JUDGMENT Rajkot, respondent No.3 herein. Since the approval was granted by respondent No.3, thereafter, on 6th December 1991, accounts were submitted to respondent No.5, i.e. District Assistant Inspector, Local Fund Account, and certain queries came to be raised by the said respondent which was clarified by letter dated 12th February 1992 by respondent No.4 and, again, further queries were raised by respondent No.5 by letter dated 8th September 1992 and it was clearly stated that Government Resolution dated 8th October 1990 of the Education Department of the State of Gujarat is not applicable in the case of the petitioner and, therefore, upgradation of pay-scale was not approved. Apropos the same, respondent No.4 passed an order on 3rd February 1994, by which, earlier order of upgradation came to be cancelled and refixation was ordered with recovery of excess amount of salary paid to the petitioner in 33 equal installments. Thereafter, the matter was taken up before respondent No.2, Competent Authority, for appropriate direction and the said Authority, vide letter dated 17th August 1994, observed that the above matter of upgradation and fixation of pay-scale is within the competence of the District Education Officer and the Local Fund Accounts Incharge is to be informed about the same and the case is to be disposed of accordingly. The above order dated 17th August 1993 is interpreted by the petitioner as if approval is accorded by the said Authority. Since the order of recovery was issued, it became subject matter of challenge in Special Civil Application No.9994 of 1995 before this Court and this Court allowed the said Special Civil Application by order dated 30th November 1995 on the ground that the impugned action of the concerned Authority was violative of principles of natural justice and, after hearing the petitioner about her grievance, and after giving opportunity to SCA/718/1997 4/7 JUDGMENT produce relevant material, appropriate order may be passed afresh in accordance with law. 3. Thereafter, the Deputy Director [Establishment], Department of Education, State of Gujarat, after hearing the petitioner and other similarly situated persons and representatives of the District Education Officer, Rajkot and Deputy Auditor of Local Fund Accounts, Rajkot, and considering the relevant Government Resolution with regard to fixation of pay-scale of teachers of secondary as well as higher secondary sections, passed order dated 30.05.1996/24.05.1996 holding that the petitioner is entitled to pay-scale of higher secondary teacher with effect from 1st December 1984 and it is to be regularized in the cadre of teacher of higher secondary in view of the educational qualification and experience possessed by the petitioner. The above order is the subject matter of challenge in the present petition on the ground, inter alia, that the petitioner was qualified to be appointed as a teacher in the Higher Secondary section with continuity of service and fixation of pay-scale in the grade of 550-900 with effect from 16.6.1978 with all increments. 4. According to the learned counsel for the petitioner, the petitioner was discharging her duties in the higher secondary section of respondent No.4-School from the beginning and, for that, she was paid Rs.50 per month towards allowance for imparting education and she being a qualified trained English Teacher, subsequently even upgradation was approved by the higher authorities, namely, District Education Officer and the Director of Education by order dated 17th August 1993. Therefore, the impugned order passed by respondent No.2 deserves to be quashed and set aside as prayed for in this petition. SCA/718/1997 5/7 JUDGMENT 5. The learned counsel for the respondents has vehemently contended that the order is passed by respondent No.2 on proper appreciation of government resolutions issued from time to time with regard to fixation of pay-scale of teachers in secondary and higher secondary section of the school and considering the fact that the petitioner was not qualified to receive pay-scale as a teacher of higher secondary section in view of Government Resolution dated 27th February 1989 issued by the Department of Education, Government of Gujarat, which required minimum qualification of Post Graduation in the subject with Second Class or Graduate with B.Ed with seven years of academic experience as a trained teacher as on June 1976 for getting pay-scale of Rs.550- 900. According to the learned counsel for the respondents, the above resolution clearly mentions about eligibility criteria to receive higher pay-scale as a teacher of higher secondary section and paragraph 2 clarifies about grant of selection grade to a teacher of secondary section as as on 1st July 1979 on completion of 15 years of service in the grade of Rs.500-900 and fixation of regular pay from 1.7.1979 to 31.3.1981. At the same time, teacher serving in higher secondary section is to be granted notional pay in the grade of Rs.550-900 from the date of appointment and it is to be made effective from 1.1.1986 in the cadre of 1640-2900 (revised). It is, further, submitted that those teachers who have entered the service in the higher secondary section after 1.7.1979 are to be given effect of above pay-scale from the date of entry into service and not otherwise. It also clarifies that the above fixation is to be made in accordance with Gujarat Pay Revision Rules, 1987. 6. Having heard the learned counsel for the parties and on perusal of the record and the relevant provisions of the Government SCA/718/1997 6/7 JUDGMENT Resolutions issued from time to time and lastly dated 27th February 1989 and the impugned order dated 30th May 1996, it is clear that the petitioner was appointed on 16th November 1977 as Assistant Teacher in the secondary section of the school and for imparting education in the subject of English in higher secondary section, she was being paid Rs.50 per month as allowance and nothing beyond that. As per the Government Resolution dated 28th October 1975, 10+2 pattern of education was introduced from June 1976 and, as per the requirement, minimum qualification was prescribed therein. For appointment of teacher in higher secondary school, minimum qualification is post-graduation with second class or trained graduate teacher with teaching experience of seven years in secondary section of the school. Thus, the petitioner was having qualification of graduation with second class (English) and B.Ed with second class and she could obtain degree of M.A. in first class only in September 1985 and, thus, did not possess prescribed qualification to be appointed as a teacher in higher secondary section. Thus, the pay fixation for the above cadre is, ultimately, subject to and in accordance with the Gujarat Pay Revision Rules 1987. Fixation of pay-scale of the petitioner initially by respondent No.4 was contrary to the relevant Rules prevailing at that point of time. Therefore, the objection by the Local Fund Accounts Department was legal and valid. What is endorsed by respondent No.2 by order dated 17.8.1993 at Annexure “K” is only jurisdictional competence of the District Education Officer to pass appropriate orders and to make clarification before the Local Fund Accounts. Thus, the petitioner was not qualified at all to have upgradation of pay-scale in the grade of Rs.550-900, which was only available to a teacher regularly appointed in the higher secondary section as per the SCA/718/1997 7/7 JUDGMENT Government Resolution dated 27th February 1989. 7. Considering the above aspects, I do not find any illegality or arbitrariness or unreasonableness in the order passed by the respondent No.2 and no relief, as prayed for, can be granted in favour of the petitioner. 8. The further submission made by the learned counsel for the petitioner is about initiation of recovery of excess amount of salary paid to the petitioner and the reliance is placed on the order of this Court dated 4th April 2001 in Letters Patent Appeal No.578 of 2000 in Special Civil Application No. 2196 of 1999. The upgradation was not at the behest of the petitioner and for the error, if any, is committed either by respondent No.4 or respondent No.3, the petitioner cannot be held responsible and, even otherwise also, initially, the pay fixation, as stated by the petitioner, from 1.7.1979 to 31.7.1990 was to be treated as notional. Therefore, the respondents are restrained from recovering the amount already paid to the petitioner pursuant to the order dated 20th August 1990 at Annexure “B” to the petition. 9. With the above direction, this petition is disposed of. Rule is discharged with no order as to costs. (ANANT S. DAVE, J.) (swamy)