IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 4032 of 2008. Decided on: 26.4.2010. __________________________________________________ Shri S.C. Rahi … Petitioner. Versus The State of Himachal Pradesh & another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Mr. Ranjan Sharma, Advocate. For the respondents : Mr. R.K. Sharma, Sr. Addl. Advocate General with Mr. Rajinder Dogra, Additional Advocate General. ___________________________________________________________ V.K. Sharma, Judge (Oral). The petitioner at the relevant time, that is, in the year 1986, was working as Headmaster in a Government Higher Secondary School on the establishment of the respondents, particularly, respondent No.2. With coming into force the new education policy at the school level comprising of 10+2, the petitioner along with various other similarly situate Headmasters and school cadre Lecturers was transferred/posted as Principal, Senior Secondary School. On such transfer/posting, he is seeking the following reliefs in the present petition which was initially filed as an Original Application before the erstwhile H.P. Administrative Tribunal (since abolished): 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 i) That the respondents may be directed to give the Special Pay of Rs. 150/- per month to the applicant w.e.f. 14.7.1988 to 31.1.1991 respectively. ii) That the action of the respondents in denying the Special Pay to the applicant after 11.7.1988, without giving any notice or hearing, may kindly be quashed and set aside. iii) That the respondents may be directed to fix the pay of the applicant, equal to that of his junior Principals of Senior Secondary Schools like one Shri H.L. Prasher and Shri Hans Raj Mehta, on the principle of “stepping up of pay” forthwith. iv) That the respondents may be directed to give the benefit of F.R. 22 C and to give 2 advance increments, w.e.f. 16.6.1986, i.e. the day from when the applicant was given the higher responsibilities, duties of an arduous nature of a Principal of Senior Secondary School from that of a Principal of a Higher Secondary School, forthwith. v) That the respondents may be directed to give interest @ Rs. 18% per annum, on the delayed payment of Special Pay and the benefit of 2 increments under F.R. 22 C, respectively. vi) That any other relief(s) deemed fit and proper in the circumstances may also be granted. vii) That the cost of the application may also be granted. 3 2. Admittedly, the service to which the petitioner was belonging at the material time was governed by the Recruitment & Promotion Rules for Class II (Gazetted) in the School and Inspection Cadre, in the Department of Education, Himachal Pradesh Government, Annexure RA. The petitioner claims that he was transferred and posted as Principal, Senior Secondary School on the basis of these rules and is as such, entitled for the reliefs claimed by him by way of the present petition. However, it is represented on the other side that with coming into operation of the policy adopted by the State Government, vide letter, dated 13.10.1989, Annexure A-8, the posts of Principals of Government Senior Schools were to be henceforth, i.e. from 13.10.1989 onwards required to be filled in by promotion instead of on the basis of placement. A perusal of letter dated 13.10.1989, Annexure A-8, would go to show that the reason for issuance of this letter was that the pay scales stood revised in the meantime. Admittedly, the new pay scales came into operation with effect from 1.1.1986. However, since the petitioner had already been placed as Principal, Senior Secondary School by way of transfer/posting and was also entitled for revised pay scales which became operational on and with effect from 1.1.1986, to my mind, letter, Annexure A-8 would be applicable only prospectively and not from back date. 3. Another submission on behalf of the respondents is that in the meantime there had also been an agreement between respondent No.2, the Director of Education and Headmasters and Lecturers agreeing not to implement the aforesaid 1980 Rules, Annexure RA. 4 4. The case of the petitioner is also that a similarly situate person, namely, Shri R.D. Sharma, Principal, Government Senior Secondary School, Dalhousie, Chamba (HP) was also granted the reliefs claimed by him in the present petition. To this effect, he is placing reliance on an office order dated 23.7.1997, Annexure A-10/T. 5. In the meantime, the Hon’ble Supreme Court had rendered a decision reported as Sunita Sharma and others versus State of H.P. and others, 1993 Supp (4) Supreme Court Cases 686, in a like matter governed by the aforesaid Recruitment & Promotion Rules. In nutshell, the submission made by the petitioner is that his case is also covered under this judgment on all fours. In order to appreciate the rival submission, it shall be appropriate to notice what has been held by the Hon’ble Apex Court in the relevant part of para 7 and para 9 of the judgment in the case of Sunita Sharma and others (supra). The observations are to the following effect: “7. We have , therefore, no hesitation in setting aside all the agreements entered into by the State Government with the employees after the 1980 Rules were framed, which Rules were admittedly made under Article 309 of the Constitution. The State Government could not have entered into the said agreements in contravention of the said Rules. The present stalemate has arisen on account of the said agreements. Had the State Government followed the 1980 Rules, there would have been no occasion for raising the present dispute. The only remedy, therefore, is to direct the State Government to enforce the 1980 Rules 5 framed the date they came into operation and work out the promotions based on the said Rules and also the 1976 Rules, as if no agreements were entered into and they did not in fact exist. The 1980 Rules are of course to be enforced till the Rules of 1992 were framed to replace them. 9. This exercise will undoubtedly result in some who were entitled to the posts either of Class II Officers or of the Deputy Directors of Education as the case may be on the basis of 1980 and 1976 Rules, but did not get the said posts at all or on the due dates because of the agreements, in getting the same or getting them on due dates. Similarly, this would also result in reversions from the respective posts of those who were not entitled to the same when they were promoted. We are informed that some of the Headmasters and School Lecturers have since retired, we, therefore, direct that the promotions should be effected notionally from the respective dates of their entitlements. However, neither the higher salaries received by those who were not entitled to the said posts should be recovered from them nor the arrears of higher salaries be paid to those who though entitled were not appointed to the higher posts on the due dates. This exercise should be done till the date on which the 1992 Rules came into operation and replaced the 1980 Rules. The promotions after the said date will be governed by the 1992 Rules. After the above exercise is carried out, the promotions to the post of Joint Director should be effected. We further direct that the whole exercise should be carried out within a period of four months from today.” 6 6. In view of the above, the petition is disposed of with the following direction: The respondents are directed to consider the case of the petitioner in the light of the judgment of the Hon’ble Supreme Court in the case of Sunita Sharma and others (supra) within a period of three months from today and take a conscious decision in the matter by then. However, since the petitioner has retired from the service of the respondents on and with effect from 31.1.1991, he shall be entitled only for notional promotion and consequential financial benefits under F.R. 22 C and special pay etc. for the period he worked as O.S.D. in accordance with law. (V.K. Sharma) Judge. April 26, 2010. (cr)