Rajasthan High Court - Jaipur

Rajesh Sonania & Ors. vs . State Of Rajasthan & Ors. on 29 October, 2014

Author:
Sunil Ambwani

Bench:
Sunil Ambwani

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
O R D E R
D.B.CIVIL WRIT PETITION NO.19160/2012
RAJESH SONANIA & ORS. Vs. STATE OF RAJASTHAN & ORS.

DATE :: OCTOBER 29th , 2014

HON'BLE THE ACTING CHIEF JUSTICE MR. SUNIL AMBWANI
HON'BLE MR.JUSTICE VEERENDR SINGH SIRADHANA

Shri Rajesh Sonania, appellant, present in person.
Mr. G.P. Mehra, OIC, for the State.
*****
BY THE COURT:(PER HON'BLE THE ACTING CHIEF JUSTICE)

1. We have heard Shri Rajesh Sonania and other petitioners, appearing in person. Shri G.P. Mehra, OIC, appears for the State of Rajasthan.

2. The petitioners were appointed on the post of Lecturer/ATPO in Government Polytechnic Colleges in Rajasthan, and have joined together for claiming the arrears of salary from 01.09.1996 to 31.12.1998, and thereafter from 01.01.2006 to 31.12.2008, on the applicability of the revised pay scales, which have been denied to them under Rule 15 of the Rajasthan Civil Services(Revised Pay-scale for Government Polytechnic College Teachers) Rules, 1999; Rule 17 of the Rajasthan Civil Services (Revised Pay-scale for Government Polytechnic College Teachers) Rules, 2001; and Rule 22 of the Rajasthan Civil Services(Revised Pay-scale for Government Polytechnic College Teachers, Librarians and Physical Training Instructors) Rules, 2010 (in short, 'the Rules of 1999', 'the Rules of 2001', and 'the Rules of 2010' respectively).

3. All the petitioners are serving as teaching staff in various faculties in the Government Polytechnic Colleges in the State of Rajasthan. Their service conditions are governed by the statutory Rules made by the State Government on the recommendations of the All India Council for Technical Education (in short, 'the AICTE'). The revision of their pay scales is also governed by the Rules made by the State Government on the recommendations of the AICTE, established by an Act of Parliament for proper planning and co-ordinated development, regulation and maintenance of Norms and Standards in the Technical Education System throughout the country. Consequent upon revision of pay scales based on the recommendations of the Central Pay Commission, the AICTE formulated a revision of pay scales and service conditions for Diploma Level Technical Institutions in the country. The recommendations of the AICTE were sent to the Government of India for approval from time to time. The Government of India, after examining the recommendations, suggested that the revised pay scale and service conditions be circulated for appropriate action.

4. In the present case, the first AICTE notification, on revision of pay scales for the terms and conditions of service of Teachers, Librarians and Physical Education Personnel in Diploma Level Technical Institutions, was issued vide letter dated 09.10.1998 by the Department of Education, Ministry of Human Resource Development, Government of India, and the letter dated 14.01.1999, implementing a Scheme of revision of pay scales of teachers of Degree Level Technical Institution, following revision of pay scales of Central Government employees on the recommendations of Fifth Central Pay Commission. Para 2.3 of the Notification reads as follow:-

2.3 State Government Institutions and Private Aided Institutions:

Taking into account the local conditions, a State Government may implement the revised pay-scales from a date later than January 1, 1999 and/or implement pay-Scales other than those given in this notification, but which are not higher than the pay-scales given in Tables (Appendix A-1, 2 and 3). Which the scheme is to be implemented, should be furnished to the All India Council for Technical Education for its approval.

The pay-Scales, qualifications and other associated terms as given in this notification shall be applicable to all self-financing (private un-aided) institutions.

5. The State of Rajasthan revised the pay scales for Government Polytechnic College Teachers in pursuance to the aforesaid Notification. The State of Rajasthan, however, while implementing the revised pay scales, withheld the arrears of pay and allowances for the period 01.09.1996 to 31.12.1998 vide Rule 15 of the Rules of 1999. In the subsequent revision by the Rules of 2001, the similar provision was made under Rule 17, and that on its further revision following the revision of pay scales of the Central Government employees on the recommendations of the Sixth Pay Commission with effect from 01.01.2006, the pay scales were revised, however arrears for the period 01.01.2006 to 31.12.2008 were withheld under Rule 22 of the Rules of 2010.

6. It is submitted by the petitioners, appearing in person, that they have been discriminated in withholding the arrears under the aforesaid Rules from 01.09.1996 to 31.12.1998 on the revision of pay scales on the acceptance of the recommendations of the Fifth Pay Commission, and thereafter from 01.01.2006 to 31.12.2008 on the acceptance of the recommendations of the revised pay scales by Sixth Pay Commission, arbitrarily discriminating them as against other employees of the State Government. The entire challenge in this writ petition to the withholding of arrears of the revised pay scale for the aforesaid periods, is based upon discrimination, which according to the petitioners, is violative of
Article 14
and
of the Constitution of India.

7. In the reply given by the State of Rajasthan, it is stated in paragraphs-II and III as follows:-

II. That the petitioners have made a prayer that rule 15 of the Rajasthan Civil Services (Revised Pay Scale for Government Polytechnic College Teachers) Rules, 1999 (hereinafter referred to as the Rules of 1999) and rule 17 of the Rajasthan Civil Services (Revised Pay Scale for Government Polytechnic College Teachers) Rules, 2001 (hereinafter referred to as the Rules of 2001) and rule 22 of the Rajasthan Civil Services (Revised Pay Scale for Government Polytechnic College Teachers, Librarians and Physical Training Instructors) Rules, 2010 (hereinafter referred to as the Rules of 2010) may kindly be declared as ultravires and be quashed and set aside. Further, it has been prayed that directions be given to the respondents to grant arrears of pay and allowances as per AICTE Regulations for the period from 1.9.1996 to 31.12.1998 withheld under the Rules of 1999 and Rules of 2001 and from 1.1.2006 to 31.12.2008 under the Rules of 2010 alongwith interest @ 12% p.a. It has also been prayed that the respondents be directed to make amendment in the Rules of 2010 and the remaining payment of 40% of the arrears with-held under the said Rules be paid to the petitioners alongwith 12% interest.

In the present context there are three sets of rules which have been referred in the writ petition. The Rajasthan Civil Services (Revised Pay Sclae for Government Polytechnic College Teachers) Rules, 1999 came into force on 1.9.1996 with clear objective of prescribing revised pay scales(AICTE) for Government Polytechnic College Teachers and governing fixation of pay therein. The AICTE notification on revision of pay scale and associated terms and conditions of service of Teachers, Librarians and Physical Education Personnel for Diploma Level Technical Institutions was convyed through a letter issued by All India Council for Technical Education dated 31.12.1999 wherein the recommendations of the All India Council for Technical Education(AICTE) regarding revision of pay scales and service conditions of Teachers of Technical Institutions (Diploma) were made applicable in the Technical Education system throughout the country. It was also made clear in the letter dated 30.12.1999 that the recommendations of AICTE regarding revision of pay scales was applicable to all Diploma Level Technical Institutions falling under the purview of the All India Council for Technical Education. The AICTE notification issued on revision of pay scales also prescribes at clause 2.3 about the date when the State Government may implement the revised pay scales and it was made clear that taking into account the local conditions the State Government may revise pay scales from a date later than January 1, 1999 and/or implement pay scales other than those given in the said notification. A copy of the notification has already been annexed with the writ petition as Annexure-3. The notification also prescribes the terms and conditions at clause 16 and in clause 16.1(d) it has been specifically made clear that the State Governments, after taking local conditions into consideration, may also decide in their discretion, to introduces scales of pay different from those mentioned in the scheme and may give effect to the revised scales of pay from January 1, 1996 or a latter date and in such cases the details of the modification proposed either to the scales of pay or the date from which the scheme is to be implemented, should be furnished to the AICTE. It is submitted that the Rules of 1999 were notified vide notification dated 13.1.1999 and the same were made applicable from 1.9.1996. Thus, as per clause 16.1(d) of the notification, the rules were framed and accordingly under rule 15 it was prescribed that there will be non accrual of arrears from 1.9.1996 to 31.12.1998. Thus, rule 15 of the Rules of 1999 in no way can be declared as ultravires nor the same requires to be set-aside as have been desired by the petitionersr.

III. That so far as the other set of Rules i.e. Rajasthan Civil Services (Revised Pay Scale for Government Polytechnic College Teachers) Rules, 2001 is concerned, rule 17 prescribes that there will be non accrual of arrears from 1.9.1996 to 31.12.1998. The same also came into existence and were formulated after the issuance of AICTE notification dated 30.12.1999 and which were also formulated for prescribing revised pay scales of AICTE for Government Polytechnic College Teachers and governing fixation of pay therein. The Rules of 2001 though came into force on 1.9.1996 but as aforesaid there cannot be anything beyong the AICTE notification dated 30.12.1999. The reasons have already been illustrated as aforesaid and thus there is no reason for the petitioners to have a grievance stating that rule 17 of the Rules of 2001 be declared as ultravires.

8. The AICTE's Notification on revision of pay scales on the acceptance of the recommendations of the Fifth & Sixth Central Pay Commissions, enabled the State Government to revise the pay scales, to be applied to the Teachers, Librarians and Physical Education Personnel in Diploma Level Technical Institutions, covered under the
AICTE Act
. The effective date for revision of pay scales, Career Advancement Scheme, and incentives was applicable from 01.01.1996 for the Fifth Central Pay Commission, and 01.01.2006 for the Sixth Central Pay Commission. The implementation in respect of State Government institutions and private aided institutions however was left to the State Government, taking into account the local conditions.

9. In the reply given by the State-respondents, it is stated that considering the local conditions, arrears were withheld for the period from 01.09.1996 to 31.12.1998 under the Rules of 1999 and the Rules of 2001, and thereafter from 01.01.2006 to 31.12.2008 under the Rules of 2010. The arrears for the period from 01.01.2009 to 30.06.2010 were however paid with a condition that 60% will be paid in the Financial Year 2010-11, to be deposited in the GPF account after deducting the income tax as per Rules, and the remaining 40% to be paid in the next financial year, subject to the condition that necessary amendments in the relevant service Rules are made.

10. The AICTE, in its Notification, had given the date of effect for the revision of pay scales by Fifth Central Pay Commission from January 1, 1996, and for the Sixth Central Pay Commission from January 1, 2006. Para 2.3 however left the implementation by the State Governments taking into account the local conditions. The recommendations have been made applicable to all the institutions and all the Degree Level Technical Institutions. The implementation was however restricted and the arrears were withheld under the impugned Rules, for which no explanation regarding local conditions has been furnished in the reply. The State Government has referred to the judgment of the Supreme Court in
State of Bihar and others Vs. Bihar Pensioners Samaj
, AIR 2006 SC 2100, in which the Supreme Court had relied on
State of Punjab and Ors. Vs. Amar Nath Goyal and others
. The State of Rajasthan however has not given any reason whatsoever to defend its decision, to be non-arbitrary and based upon some rational stand. There is no averment in the reply, except that refusal to make the payment of arrears on the ground of financial burden.

11. The financial burden, which the State Government had to face and was difficult to overcome, has not been specified with reference to the amount which was required to be paid to the employees of the Diploma Level Technical Institutions, as against the personnels of Degree Level Technical Institutions, who were given the benefit from 01.09.1996 and thereafter from 01.09.2006.

12. In order to defend the decision, to be non-arbitrary and rational, the State of Rajasthan should have discharged the burden by placing on record some materials to justify its decision. Apart from stating that considering the local conditions which means the financial burden, the arrears were withheld, no material whatsoever has been placed to justify the decision.

13. We are informed that there are limited number of employees in the Diploma Level Technical Institutions, which were entitled for the arrears for revision of pay scales under the Rules of 1999, 2001 and 2010. Whereas the arrears for the period 01.01.2009 to 30.06.2010 were paid in two installments, first to be deposited in the GPF account, there is absolutely no reason forthcoming in the reply as to why the employees of the Diploma Level Technical Institutions were discriminated for the remaining arrears. The financial burden, which on payment of arrears the State Government would have faced, has not been computed, nor the budgetary provisions have been disclosed to discriminate the petitioners with the Degree Level Technical Institutions.

14. We also find that the State Government not only failed to place the materials on record, on which the decision was taken to withhold the arrears, they have also not given the details about other categories of the employees, who were not paid the arrears, to justify the financial burden.

15. The State Government has, without any rational basis, discriminated the Diploma Level Technical Institutions from the Degree Level Technical Institutions, by treating them to be inferior, whereas the AICTE has not discriminated the Institutions in their recommendations either on the basis of their qualification or nature of work performed by the employees in the two Institutions.

16. For the aforesaid reasons, we hold the withholding of the arrears under Rule 15 of the Rules of 1999, Rule 17 of the Rules of 2001, and Rule 22 of the Rules of 2010, to be discriminatory and thus, violative of
Article 14
and
of the Constitution of India.

17. The writ petition is allowed with direction to the State of Rajasthan to compute and pay the entire arrears to the petitioners of the Fifth Central Pay Commission for the period 01.09.1996 to 31.12.1998, and further for the period 01.09.2006 to 31.12.2008 for all the 12 petitioners, after taking a declaration from them that they were actually serving during that period and were entitled to the arrears, provided such arrears were withheld, within a period of three months. The arrears will be paid to the petitioners with simple interest calculated at the rate 9% per annum. There shall be no order as to costs.

(VEERENDR SINGH SIRADHANA),J. (SUNIL AMBWANI),ACTING C.J.

/KKC/
(RESERVE)

Certificate:

All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.

KAMLESH KUMAR
P.A.