IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.319/1997 Decided on.17.6.2008 Hira Lal. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents Coram The Hon’ble Mr. Justice Jagdish Bhalla, C.J. The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Shrawan Dogra, Advocate. For the respondents: Mr. R.K. Bawa, Advocate General with Mr. J.K. Verma, Deputy Advocate General for the respondents. Rajiv Sharma, J. (oral): By medium of this petition, the petitioner has assailed the order dated 28.4.1997 of the learned Himachal Pradesh Administrative Tribunal passed in OA No. 1167 of 1993. Mr. Shrawan Dogra, Advocate strenuously argues that the order dated 28.4.1997 is not sustainable in the eyes of law. 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes 2 The learned Advocate General has supported the order dated 28.4.1997. We have heard the learned counsel for the parties and perused the pleadings of the parties. The petitioner was appointed as untrained teacher on 4.11.1968 on a fixed salary of Rs. 40/- per month in the pay scale of Rs. 60-125. This scale was admissible to JBT Teachers. He was deputed for JBT Teacher training during the session 1971-73. A decision was taken by the State on 1.9.1979 to allow running scale admissible to the JBT Teachers to matriculate and non-matriculate untrained teachers from the date of their initial appointment as per the conditions enumerated. Another decision was also taken by the respondent-State on 13.5.1983 to treat untrained teachers on duty during the training period who underwent the said training during the sessions 1968-70 and 1969-71. A similar decision was also taken for those untrained teachers who were deputed for training during the sessions 1970-72, 1971-73 and 1973-75. A conscious decision was taken by the respondent-State on 6.6.1990 to grant seniority to untrained JBT Teachers from the date of their initial appointment. He was assigned Sr. No. 314 and in the column of date of appointment, his date of appointment has been reflected as 4.11.1968. The category of JBT Teachers to which the petitioner belongs vide notification dated 23.3.1989 were allowed the revised pay scale on the Punjab pattern with effect from 1.1.1986. The pay scale was divided into three segments i.e. (i) Rs. 1200-2100 as entry grade, (ii) Rs. 1410-2640 as senior scale after eight years of service 3 and (iii) Rs. 1640-2925 as selection grade after eighteen years of service. It was clarified vide letter dated 6.5.1989 that the period of eight years and eighteen years for the purpose of granting revised pay scale is to be reckoned from the date the incumbent was working on the same post. Vide letter dated 4.4.1990, a clarification regarding allowing additional increment by way of proficiency step up was circulated. Point No.15 of this letter deals with the category of the JBT Teachers. It was clarified therein that for the purpose of counting eight/eighteen years of service for the purpose of grant of proficiency step up, service is to be counted from the date of qualifying the JBT examination. A clarification was issued on 14.6.1989 explaining therein that the grant of additional increments by way of proficiency step up was not relevant for the purpose of placement of a person in the running grade after rendering eight/eighteen years of service. The petitioner’s pay was fixed on 1.1.1986 at Rs. 1410/- in the senior scale and Rs. 1640/- as on 4.11.1986 in the selection scale as per the revised pay scales on the basis of notification dated 23.3.1989. However, the Block Primary Education Officer on the basis of the notification issued on 4.4.1990 (Annexure A-8) ordered recovery of Rs., 11,337/- from the pay of the petitioner. He filed an original application bearing OA No. 1511/1990 before the learned Himachal Pradesh Administrative Tribunal. The same was directed to be treated as representation by the learned Tribunal on 10.6.1992. The representation was rejected on 20.4.1993. He assailed this order dated 20.4.1993 along with other Annexures by way of OA No. 1167/1993 before the learned 4 Himachal Pradesh Administrative Tribunal. The State resisted and contested the claim of the petitioner before the learned Himachal Pradesh Administrative Tribunal. The learned Himachal Pradesh Administrative Tribunal partly allowed the original application on 28.4.1997 whereby the recovery of the amount was restricted up to 4.4.1990 i.e. the date on which Annexure A-8 was issued. It is in this backdrop that the writ petition is to be adjudicated upon. Mr. Shrawan Dogra, Advocate has strenuously argued that his client though was appointed as untrained Teacher on 4.11.1968, however, he was deputed for JBT Teacher training for the session 1971-73 and as per the decision of the State Government, the petitioner and similarly situate persons have been paid their salary for the period of training as well. The petitioner was assigned seniority as per letter dated 6.6.1990 and his name was reflected at Sr. No. 314 and in the column of date of appointment, his date of appointment has been mentioned as 4.11.1968. It is evident from the reading of the text of letter dated 23.3.1989 that there were three pay scales which were to be granted to the Teachers, who were granted scale of Rs. 1200-2100 as entry grade, Rs. 1410-2640 as senior scale and Rs. 1640-2925 as selection scale. The petitioner, as noticed above, was fixed as on 1.1.1986 at Rs. 1410/- in the senior scale and at Rs. 1640/- as on 4.11.1986 in the selection scale. These pay scales have been granted to the petitioner strictly as per letter dated 23.3.1989. The controversy arose only after the issuance of clarification dated 4.4.1990 (Annexure A-8). We have gone through the contents of 5 letter dated 4.4.1990 carefully. This pertains only to proficiency step up and in no manner deals with the releasing of running pay scale. A clarification was also issued on 14.6.1989 that Annexure A-9 only pertains to grant of additional increments by way of proficiency step up. Despite that the Block Primary Education Officer has ordered the recovery from the petitioner. This was not permissible under the law. The Block Primary Education officer has not taken into consideration clarification dated 14.6.1989 while ordering recovery from the salary of the petitioner. The petitioner, as noticed above, had earlier filed original application before the learned Himachal Pradesh Administrative Tribunal, which was treated as representation on 10.6.1992. The representation was decided on 20.4.1993. During the pendency of the original application and before the decision of the representation i.e. 20.4.1993, another clarification Annexure A-13 was issued whereby it has been made abundantly clear that point No.15 of Annexure A-8 dated 4.4.1990 only pertains to proficiency step up. The relevant text of clarification dated 11.7.1991 is reproduced as under: “In this connection it is informed that serial No. 15 of the above letter is applicable in the case of grant of proficiency step up only. This clarification has no effect on the running pay scale of untrained regular teachers. In this regard vide letter No.Edn.- H(III)8-II/70-part-7 dated 29.12.79 and 1.1.80 clarification given vide serial No.2 thereof with regard to allowing running pay scale to the untrained matric and under matric teachers it has been clarified that the pay of untrained teachers should be fixed at the appropriate stage but the 6 arrears of 38 months prior to 1.9.79 shall be payable and thereafter salary should be paid to them after fixation of pay. In case you have issued orders regarding recovery on this account, further action may be taken immediately keeping in view the above facts. The action taken may also be intimated to this Directorate.” Despite this clarification dated 11.7.1991, the representation of the petitioner has been rejected on 20.4.1993. The learned Himachal Pradesh Administrative Tribunal has not at all referred to clarification dated 11.7.1991 while deciding the original application. The Himachal Pradesh Administrative Tribunal has treated the entire case of the petitioner as if it was a case for proficiency step up. Though to the contrary it was filed only for getting pay scale on the basis of letter dated 23.3.1989. Mr. Shrawan Dogra, Advocate has also drawn the attention of this Court to Annexure P-6 dated 15.2.1996 whereby decision as explained in communication dated 11.7.1991 has been reiterated. The text of letter dated 15.2.1996 reads thus: “As per letter No.Fin. (C-V) (7)-29/88 dated 5.5.1989 from Finance Department on the above subject it has been clarified that for the purpose of placement in senior scales/selection scale from 1.1.1986 the counting is to be done from the date of 1st appointment. A clarification has been given in this regard by this office vide letter No. EDN-B (11) (Pry.) 3-13/89 dated 6.5.89 copy attached. Therefore, the matter may be decided as per the clarification of the finance department referred above.” 7 It will also be pertinent at this stage to reproduce in its entirety letter dated 6.5.1989 as under: “I am directed to say that the pay scales of certain categories of Teachers in the Education Department like Head Master, TGT, Lecturers, B.P.Es. and JBT etc. have been revised w.e.f. 1.1.1986 prescribing three different scales. The inquiries are being received: (i) Whether the period of 8 and 18 years for placement in the Senior Scale and Selection Scale is to be reckoned from 1.1.1986 or since the date they are working on the same post, and (ii) Those teachers who have completed 8/18 years service on or before 1.1.1986 and whose pay has been fixed according to the ready reckoner below minimum of the senior scale and selection scale of these categories whether they will be fixed at the initial of the senior or selection scales. In this connection, the position is clarified as under: i) The period of 8 and 18 years is to be reckoned from the date one is working on the same post, and ii) if an employee on the basis of his length of service on that post qualified for placement in the Senior Scale or the Selection Scale, he will straightaway be placed in that scale irrespective of the fact whether he is drawing less pay than the minimum of that scale. This may be brought to the notice of all concerned.” 8 It is evident from the combined reading of Annexures P-6 and P-7 that the counting of the period for getting senior scale/selection grade is to be from the date of first appointment after putting in eight/eighteen years of service. It is reiterated that the petitioner has been granted the senior scale and selection grade in accordance with law and the same could not be denied on the basis of letter dated 4.4.1990. The original application has been decided by the learned Tribunal on 28.4.1997 and on that date the State had already clarified again on 15.2.1996 that the senior scale/selection scale from 1.1.1986 was to be allowed from the date of first appointment. It was bounden duty of the State to bring this letter to the notice of the learned Tribunal. The learned Tribunal has erred while treating the case of the petitioner vis-à-vis the JBT Teachers serving in the Punjab. In the present case though the petitioner was untrained initially, but he acquired the qualification of JBT when he was sent on deputation for training. He has been paid the salary for the period of training as per letter dated 12.4.1990. He has been granted the seniority from the initial date of appointment i.e. 4.11.1968. He was rightly granted the senior scale/selection scale after having put in eight/eighteen years of service in accordance with law. The recoveries have been ordered to be effected from his salary on the basis of clarification dated 4.4.1990 which at all is not applicable in the present case. It is reiterated that clarification dated 4.4.1990 only pertains to proficiency step up and this position has been explained by way of letter dated 11.7.1991 and 15.2.1996. The possession of qualification of JBT is only relevant for the 9 purpose of proficiency step up and not for the grant of running pay scale. The judgment relied by the learned Tribal i.e. 1997 SCC (L&S) 106 is distinguishable. In that case the Lecturers therein had not put in regular service to claim selection scale. In the present case, the appointment of the petitioner is on regular basis with effect from 4.4.1968 and immediately on completion of eight years, he was entitled to senior scale and thereafter selection grade on the basis of letter dated 23.3.1989. In view of the observations made hereinabove, the writ petition is allowed. The order of the learned Tribunal dated 28.4.1997 is quashed and set aside. Annexure A-10 dated 9.10.1990 is also quashed and set aside. The respondents are directed to fix the pay of the petitioner as on 1.1.1986 at Rs. 1410/- in the senior scale and Rs. 1640/- in the selection grade as per the Himachal Pradesh Civil Services (Revised Pay) Rules,1988 applicable with effect from 1.1.1986 with all consequential benefits. The respondents are further directed to refund the amount recovered from the pay of the petitioner with interest @ 9% per annum till its realization. There shall be no order as to costs. (Jagdish Bhalla), C.J. (Rajiv Sharma), J. June 17, 2008 *Awasthi*