Punjab-Haryana High Court
Smt Neelam Bali And Others vs State Of Punjab And Others on 6 March, 2009
Author: Jaswant Singh
Bench: Jasbir Singh, Jaswant Singh
C.W.P.No.3790 of 2006 1
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA, CHANDIGARH
Date of decision: 06 .03.2009
C.W.P.No.3790 of 2006
Smt Neelam Bali and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. S.S. Rana, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for respondents No.1 to 3.
C.W.P.No.17688 of 2006
Raj Guru and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. Harinder Sharma, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents.
C.W.P.No.15065 of 2007
Balwant Ram ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.K. Arora, Advocate for the petitioner.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.1342 of 2008
Avtar Singh and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.K. Arora, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.5150 of 2008
Kashmir Singh ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
C.W.P.No.3790 of 2006 2
Present: Mr. R.K. Arora, Advocate for the petitioner.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.11472 of 2008
Vijay Kumar and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.K. Arora, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents.
C.W.P.No.11498 of 2008
Tarlochan Singh and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.K. Arora, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.11753 of 2008
Harminder Kaur ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.K. Arora, Advocate for the petitioner.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.11756 of 2008
Mohinder Kaur ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. R.S. Rangpuri, Advocate for the petitioner.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.14619 of 2008
Darshan Singh and others ......Petitioner(s)
Versus
State of Punjab and others ...Respondent(s)
Present: Mr. Surender Garg, Advocate for the petitioners.
Mr. K.S. Dadwal, Addl.A.G, Punjab for the respondents. C.W.P.No.3790 of 2006 3
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JASWANT SINGH
JASWANT SINGH,J
This judgment shall dispose of abovesaid ten writ petitions bearing CWP Nos.3790 of 2006, 17688 of 2006, 15065 of 2007, 1342 of 2008, 5150 of 2008, 11472 of 2008, 11498 of 2008, 11753 of 2008, 11756 of 2008 & 14619 of 2008 since common questions of facts and law are involved in these writ petitions. For the sake of brevity and with the consent of counsel for the parties, facts from CWP No.3790 of 2006 have been taken and dealt with.
The core issue involved in all the above stated writ petitions is as to whether the petitioners, who were working as JBT/C & V Teachers (Hindi/Punjabi Teachers etc) in the same pay scale as that of promotional post of Master/Mistress, would be entitled to grant of one additional increment on their promotion to the post of Master/Mistress on the ground of assuming higher responsibilities.
CWP No.3790 of 2006
Petitioners, four in number, have filed the present writ petition praying for quashing of order/reply to the legal notice dated 2.1.2006 (Annexure P.4) vide which the respondents have rejected the claim of the petitioners for grant of benefit of one increment on their promotion from the post of Hindi Teacher to Hindi Master/Mistress.
Initially, all the four petitioners were appointed on the post of Hindi Teachers in C & V Cadre. Their dates of joining in the C & V Cadre is 6.6.1986, 12.6.1974, 9.3.1978 and 19.11.1976 respectively. Subsequently, on the basis of their seniority-cum-merit, they were promoted C.W.P.No.3790 of 2006 4 as Hindi Master/Mistress with effect from 3.7.2001, 14.12.2000, 14.12.2000 and 29.11.2001 respectively. As per Punjab State Education Class III (School Cadre) Service Rules,1978 (hereinafter to be referred as "rules of 1978), 75% posts of Masters/Mistresses are to be filled by way of direct recruitment and 25% posts by way of promotion from amongst trained graduates working on the post of Teachers in JBT Cadre or in the C & V Cadre on the basis of their seniority-cum-merit. It is alleged that at the time of their promotions, the petitioners were entitled to the benefit of one increment on account of higher responsibility in the cadre of Master/Mistress under the provisions of Rule 4.4 of the Punjab Civil Services Rules as applicable to Volume I, Part I (hereinafter to be referred as "Pb.C.S Rules"). It is further alleged that Rule 8 of the Punjab Civil Services (Revised Pay) Rules, 1988 (hereinafter referred to be as "rules of 1988") also provides for grant of one increment while fixing pay on promotion on the higher post. It is further alleged that the similar controversy was decided by this Court in the case of Lekh Raj and others v. State of Punjab and others reported as 1986 (3) SLR 410 and against that judgment, an SLP filed by the State of Punjab was dismissed and consequently State of Punjab issued General Instructions dated 17.11.1989 (Annexure P.2) for grant of benefit of one increment to all the such like eligible employees.
It is further the case of the petitioners that similarly in the case of Lal Singh v. State of Punjab reported as 1998(1) SCT 52, the Hon'ble Supreme Court has directed to grant one additional increment to the JBT Teachers on their promotion to the post of Head Teachers. Petitioners further relied upon a Division Bench judgment of this Court in CWP C.W.P.No.3790 of 2006 5 No.18303 of 1998 decided on 25.7.2000 titled Veena Kumari v. State of Haryana, copy of which is appended as Annexure P.5. They also relied upon judgments/orders dated 22.10.2002, 6.1.2004, 16.1.2002 and 31.3.2004 (Annexures P.6, P.7, P.8 & P.9) respectively. It is further alleged that the respondents are adopting a pick and choose policy and have granted this benefit to so many similarly situated employees, who are working in other Districts on their promotion to the post of Master/Mistress from the cadre of C & V Teachers.
It is further pleaded that the petitioners on being denied the due one increment on their promotion as Hindi Masters/Mistresses, served a legal notice dated 29.11.2005 (Annexure P.3) through their counsel and the respondents through their impugned reply/letter dated 2.1.2006 (Annexure P.4) have stated that the petitioners are not entitled for the benefit of one additional increment on their promotion in the Master/Mistress Cadre. Hence, the present writ petition.
Upon notice, District Education Officer (S.E), Ropar has filed written statements on behalf of respondents No.1 to 3 denying the claim of the petitioners in the preliminary objections on the ground that in view of the provisions of Rule 4.4 (a) (i) and Rule 4.13 (2) of the Pb.C.S Rules, extra/additional increment is to be awarded only in cases, where the new/promotional post involves duty of greater importance. It is further stated that in the present case, there is no change in the nature of duties of the petitioners after their promotion from Hindi Teachers to Hindi Master/Mistress as prior to their promotion also, they were teaching Hindi to the Classes from 6th to 10th and after their promotion also, they are teaching the same subject of Hindi to the same level of Classes i.e from 6th C.W.P.No.3790 of 2006 6 to 10th. The result statement in respect of petitioner No.1 Neelam Bali as Hindi Teacher prior to her promotion and after promotion as Hindi Mistress is appended as Annexure R.1.
Rule 4.4 (a)(i) & (ii) and Rule 4.13(2) of Pb.C.S Rules referred to above as reproduced in the reply reads as under:
" 4.4 (a) (i). When the appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purpose of rule 4.13) then those attaching to such permanent post he will draw initial pay the stage of time scale next above his substantive pay in respect of old post;
(ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time-scale which is equal to his subatantive post in respect of the old post, or, if there is not such stage, the stage next below that pay plus personal pay equal to difference and in either case will continue to draw that time-scale of old post or for the period after which an increment is earned in the time-scale of the new post he will draw that minimum as initial pay.
(iii) xx xx xx
(b) xx xx xx
© xx xx xx
4.13 (2) For the purpose of this rule, the officiating
appointment shall not be deemed to involve the assumption of duties or responsibility of greater importance if the post to which it is made is on the same scale pay as permanent post.
Note-1 the words "duties" and responsibilities used in this rule are to be interpreted in a wide sense as including the works to be performed that general responsibilities and liabilities incidental to being member of a particular service.
Note-2 higher officiating pay not permissible to old incumbent in case where different scales of pay have been merged into a single time scale for entrants into Govt service after 31 December 1930. "
It is further submitted by the respondents that a perusal of the C.W.P.No.3790 of 2006 7 rules makes it clear that increment on account of higher responsibility is not to be granted in those cases, where an employee is appointed on a new post with the same scale of pay as that of old post. In the present case, the petitioners' post of Language Teacher as well as that of Language Master/Mistress have been placed in the same scale of pay i.e Rs.1640-2925 with effect from 1.1.1986 vide Notification dated 17.2.1989 (Annexure R.2) with the written statement. It is further averred that in view of the Finance Department Notification dated 11.1.1990, promotional increments are allowed, when the time scale of both the higher and lower posts are the same, provided it is certified by the Administrative Department that higher post involves greater responsibility and the Administrative Department vide its letter dated 22.8.2006 (Annexure R.3), while examining a similar matter has observed that Language Teachers are not entitled to additional increments on promotion as Masters/Mistresses, as their promotion does not confer any higher responsibility upon them, therefore, the petitioners are not entitled for increment of higher responsibility.
It has been further stated that the provisions of Rules of 1988 are not relevant to the claim for increment to the higher responsibility. So far as Lekh Raj's case (supra) is concerned, it is submitted that the facts are distinguishable as the petitioners therein were teaching the primary and lower middle classes and with their promotions, they were required to teach higher Classes i.e Middle Classes, but the petitioners, in the present case, are teaching the same level of Classes on their promotions. Similarly, it is stated that the facts in Lal Singh's case (supra) are also distinguishable as the petitioners therein were promoted from Junior Basic Training Teachers to Head Teachers, which involve higher responsibility.C.W.P.No.3790 of 2006 8
It is further pleaded that Veena Kumari's case (supra) is not relevant as the petitioners in that case were promoted from JBT Teachers to Social Studies Masters and that included higher responsibility.
It is further pleaded that in the case of Bhuvnesh Kumar, issue of higher responsibility was although adjudicated by the High Court and Tripta Devi's case was decided on the basis of Bhuvnesh Kumar's case. In Satbir Singh's case also, issue of higher responsibility has not been adjudicated. So far as adopting pick and choose method for grant of additional increment in similar cases is concerned, it has been denied by the respondents, though it is admitted that in some cases, the said benefit was inadvertently awarded by Drawing and Disbursing Officer and the same has been withdrawn or is in the process of withdrawing.
Separate reply by way of affidavit dated 6.8.2007 along with Annexures has been filed by K.B.S. Sidhu, Secretary to Government of Punjab, Department of School Education wherein it is submitted that before 1.1.1986, there were many categories of Teachers of C & V Cadre i.e Hindi Teacher/Punjabi Teacher/Urdu Teacher/Sanskrit Teacher and other categories of the same cadre were PTI, Sewing Teachers and Drawing Teachers etc in the Education Department, Punjab. Only Language Teachers of C & V Cadre were granted the higher grade of Master Cadre with effect from 1.1.1986 vide Notification dated 17.2.1989 (Annexure R.1) on the recommendations of 3rd Pay Commission and as such Language Teachers as well as Language Master/Mistresses were placed in the same scale of pay i.e Rs.1640-2925/- with effect from 1.1.1986, although they were granted different pay scales i.e Rs.570-1080/- and Rs.620-1200/-
respectively prior to 1.1.1986. However, with effect from 1.1.1986, both C.W.P.No.3790 of 2006 9 the posts have been placed in the same single time scale of Rs.1640-2925/-
and thus under Rule 4.4 (a)(i) read with Rule 4.13(2) along with Note 1 and 2 appended thereto, the petitioners are not entitled to one increment for the reasons as under:
(1) Employees continue to perform same duties.
(2) Both posts are in the same time scale.
It is also submitted that vide Notification dated 11.1.1990 (Annexure R.2) issued by the Finance Department, Administrative Department has to certify that higher post of Language Master involves greater responsibility vis-a-vis lower post i.e Language Teacher and the promotional increments are allowed when the Certificate is issued by the Administrative Department that the higher post involves assumption of duties and responsibilities of greater importance than those attached to the lower post. It has been further stated that the Administrative Department of Education vide their memo dated 22.8.2006 (Annexure R.3) has observed that Classical and Vernacular Teachers namely Hindi /Punjabi /Urdu are not entitled to the additional increment on promotion as Master/Mistress as factum of their promotion does not bestow upon them any duty of higher responsibility. It is further submitted that the petitioners, who have been promoted as Language Masters/Mistresses, have been promoted from Language Teachers on or after 1.1.1986 and are drawing a salary in the pay scale of Rs.1640-2925/-, which was also admissible to the Language Teachers in the C & V Cadre. It is further submitted that in view of Notification dated 25.9.2006 (Annexure R.5), clarification regarding fixation of pay on promotion to higher post under Sub Rule (1) of Rule 8 of Rules of 1988 is applicable only to fixation of pay on promotion to higher C.W.P.No.3790 of 2006 10 post in which assumption of higher responsibility is involved but in the present case as already submitted, no higher responsibility is involved as they are teaching the same level of Classes as they were teaching prior to their promotion.
An additional affidavit dated 15.1.2008 was also filed by K.B.S Sidhu, Secretary to Government of Punjab, Department of Social Education in which it was clarified that in Bhuvnesh Kumar's case, he was promoted to the post of Hindi Master from the date, his juniors were promoted. However, the issue of higher responsibility and awarding increment of higher responsibility within the same time scale and the same responsibility was never prayed in that case nor this issue was adjudicated by the High Court vide order dated 22.10.2002 (Annexure P.6). In that case, only prayer was made for promotion with effect from the date, the juniors were promoted, therefore, it is submitted that this was not a case, which involved interpretation of award of increment due to higher responsibility. It is further submitted in para 4 of the affidavit that in view of decision dated 22.9.2006 rendered in a case titled State of Haryana and another v. Partap Singh reported as (2006) 10 SCC 251, benefit of promotion/higher pay scale is to be granted only once. Once the pay scale of promotion is granted to an employee while working on a lower post, he is not entitled to any additional benefit on his actual promotion to his higher cadre.
We have heard learned counsel for the parties and perused the record carefully. After giving our thoughtful considerations to the rival submissions and the detailed pleadings, we are of the opinion that the petitioners, who were promoted in the C & V Cadre of Hindi Teachers to the cadre of Masters/Mistresses after 1.1.1986 i.e the date when both the C.W.P.No.3790 of 2006 11 posts of Hindi Teacher and promotional post of Hindi Master/Mistress were placed in the same pay scale of Rs.1640-2925/-, are not entitled to the grant of one additional/extra increment in terms of Rule 4.4(a)(i) read with Rule 4.13(2) of the Pb. C.S Rules. In view of the categoric stand of the Education Department that the petitioners, prior and after their promotion were teaching the same level of Classes i.e from 6th to 10th and on their promotion, they assumed no higher responsibility from the reading of Rule 4.4 (a)(i) of the Pb. C. S Rules as reproduced hereinabove, it is clear that benefit of extra increment on promotion to a post of higher responsibility is not to be granted when the pay scale of both the posts is the same. The petitioners are not even entitled to the grant of extra increment in view of the Notification dated 11.1.1990 issued by Finance Department, Punjab in view of the stand of the Administrative Department in its letter dated 22.8.2006 (Annexure R.3), wherein, Administrative Department is categoric in conveying that Language Teachers on promotion as Language Masters/Mistresses are not entitled to extra increment as their promotion does not confer any higher responsibility upon them. The reliance placed, on behalf of the petitioners, on a subsequent Instructions dated 26.2.2007 issued by the Finance Department, Punjab on the subject of clarifications regarding fixation of pay in promotional scale is misplaced, as the Instructions are meant to cover entirely different situation. Thus, in our opinion, this writ petition lacks merit and deserves to be dismissed.
We further find that this matter is squarely covered with the judgment of Hon'ble Supreme Court in Partap Singh's case (supra).
In that case, petitioners were appointed as JBT teachers in Haryana Education Department. They acquired higher qualification of C.W.P.No.3790 of 2006 12 BA/Inter, B.Ed during the course of their service. After acquiring higher qualification, on the basis of letter/notification dated 23.7.1957, they were given the grade of Social Study Masters and subsequently when they were promoted as Social Study Masters, they were granted one increment on account of discharge of higher qualification from the date of promotion as Social Study Master and their initial pay in the promotional grade was fixed under Rule 4.4.
Subsequently, the State Government decided that increment on account of discharge of higher qualification could not be granted to the Social Study Masters. The Drawing & Disbursing Officers withdrew the said increments. In these circumstances the writ petitioners claimed that since increments had been granted because they were discharging higher responsibility while teaching higher classes in schools, therefore, under Rule 4.4 of the Pb.C.S Rules (as applicable to Haryana), they were entitled to the said increment and it cannot be withdrawn. Circular dated 23.7.1957 was subsequently modified by the Government of Haryana vide notification dated 9.3.1990 and it was clarified in para 6 thereof that the benefit which was given in terms of para 2 of Punjab Government letter dated 23.7.1957 or any subsequent letters/notifications issued by the State Government, the masters/teachers in the Education Department will be placed in the scale of pay of their respective categories to which they are appointed against the sanctioned posts and mere possession/acquiring of higher qualification will not entitle them automatically to claim higher pay scales, meaning thereby that after issuance of this notification, acquisition of higher qualification would not entitle the benefit of higher pay scale i.e Master's pay scale. Thus after issuance of clarification JBT teachers who acquired higher C.W.P.No.3790 of 2006 13 qualification were not entitled to the higher pay scale of masters but for the reasons best known to the State Government, no steps were taken in pursuance of subsequent changed circular and pursuant to earlier circular, teachers continued to draw the higher pay scales of masters and subsequently they were promoted to the post of Masters and in these circumstances, they again sought the benefit of one increment of pay by filing writ petition in Partap Singh's case (supra). Writ petition was allowed by the High Court. Positition was clarified before the Hon'ble Supreme Court by way of an affidavit that though writ petitioners were granted the pay scale of masters while working on lower post of JBT Teachers on acquiring higher qualification of B.A, B.Ed in terms of circular dated 23.7.1957 but they were not appointed/promoted to the post of Masters, of course they were drawing the pay scale of Masters without any regular promotion and without regular promotion so granted they can not claim fixation of pay in terms of Rule 4.4 of Punjab CSR Rules ( as applicable to Haryana), because they were already given the same scale of masters, as this will result in heart burning amongst direct recruits who have been working as Masters for long period but would be getting lesser pay than those like respondents, if the impugned judgment passed by High Court is upheld. It was also pointed out that writ petitioners were already getting functional pay scale of promotion post of Masters while working as JBT and the pay was also fixed in the higher pay scale and thus on their actual promotion to the post of Masters they are not entitled to re-fix their pay by granting one additional increment under Rule 4.4 and the Hon'ble Supreme Court held that since writ petitioners were already getting the functional pay of Masters while working as JBT Teachers, now they have been promoted in the pay C.W.P.No.3790 of 2006 14 scale of Masters, therefore, they cannot get another fixation of pay which would amount to double benefit to the persons who are already working as Masters. The relevant paras No.7,8,9 and 10 of the Partap Singh's case (supra) are as under:
" 7. Learned counsel for the appellants strenuously submitted that once the respondents while working as JBT teachers have been granted higher pay scale of Masters and now the regular promotion order was issued, it would not be possible to grant them one more increment while fixing their pay in the promotional post of Masters. The submission of learned counsxel for the appellants appears to be justified. Since the respondents herein were already functioning in the pay scale of Masters and it was nothing but regularisation of their pay which they were not entitled to because of the change in the policy but they were allowed to continue and now when the regular promotion is sought to be given to them they cannot get the double benefit of fixation of pay. As per the rejoinder-affidavit filed on behalf of the State Government by Shri Dayal Singh Sangwan, Budget Officer (Schools) in the Directorate of Secondary Education, Haryana it apears that the respondents on acquiring the higher qualifications were granted one additional increment though they were not entitled because by that time the policy had been changed in 1990 but nobody challenged the earlier judgments by which the Court allowed them to continue in the functional pay scale of Masters. Now, because of regular promotion order being issued for the post of Masters, it only amounts to regularisation of the pay scale which they were already drawing i.e pay scale of Masters. Thus, granting of one more increment because of regularisation of the respondents by promoting them to the post of Masters, would not entitle them to the double benefit, though they have already got one increment on acquiring the higher educational qualifications and now on regular promotion being given in the Masters' pay scale in which they were already working, they cannot claim another benefit. Rule 4.4 reads as under:
" 4.4. The initial substantive pay of a government employee who C.W.P.No.3790 of 2006 15 is appointed substantively to a post on a timescale of pay is regulated as follows:
(a) If he holds a lien on a permanent post, other than a tenure post, or would hold lien on such a post, had his lien not been suspended-
(i) when appointment to the new post involves the assumption of duties or responsibilities of greater importance (as interpreted for the purposes of Rule 4.13) than these attaching to such permanent post, he will draw as initial pay the stage of the timescale next above his, substantive pay in respect of the old post;
(ii) When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the timescale which is equal to his substantive pay in respect of the old post, or, if there is no such stage, the stage next below that pay plus personal pay equal to the difference, and in either case will continue to draw that pay until such time as he would have received an increment in the timescale of the old post or for the period after which an increment is earned in the timescale of the new post, whichever is less. But if the minimum of the timescale of the new post is higher than his substantive pay in respect of the old post he will draw that minimum as initial pay;
(iii) when appointment to the new post is made on his own request under Rule 3.17 (a) and maximum pay in the timescale of that post is less than his substantive pay in respect of the old post, he will draw that maximum as initial pay."
The above rule says that when appointment to the new post involves the assumption of duties or responsibilities of greater importance than those attaching to such permanent post, the incumbent will draw as initial pay the stage of timescale next above his substantive pay in respect of the old post meanining thereby that the promotion which involves responsibilities of greater importance, then in that case the incumbent will draw as initial pay the stage of timescale next above his substantive pay in respect of the old post. That means he will be entitled to one increment in the old post. But in the present cdase, the respondents are already drawing the pay scale of the post of C.W.P.No.3790 of 2006 16 Master i.e higher post. As such, where is the question of granting them one increment further now? Under Rule 4.4 it could have been possible to grant them fixation if they were continuing in the old scale of JBT teachers and oin their promotion to the post of Master, then certainly they would have been entitled to fixation of pay giving them the initial pay the stage of timescale next above their substantive pay in respect of the old post. But they are already fixed in the pay scale of higher post of Master which though legitimately they were not entitled to because of the change in the policy but they continued in the higher pay scale despite the change in the policy and the Government did not take any further steps to put the house in proper order. Be that as it may, since the respondents were drawing the higher pay scale on acquiring of higher educational qualifications i.e the Masters' pay scale, and now only regular orders have been passed, promoting them as Master, there is no question of again fixing them next above their substantive pay in respect of the old post. They are not holding the old post any more and they were not drawing the salary of JBT teachers i.e the old post. Therefore, there is not question if granting them the initial pay the stage of timescale next above their substantive pay in respect of the old post.
8. In this connection, a reference may be made to the decision of this Court in State of Haryana v. Sumitra Devi wherein the earlier decisions of this Court on similar controversy were reviewed and it was observed in para 5 of the judgment as follows: (SCC pp.326-27).
" 5. It is, therefore, not a case where the petitioners had acquired a qualification prior to 9-3-1990 while acting as teachers or masters. The circular letter dated 9-3-1990 clearly states that a higher scale of pay would not be admissible to them despite holding a higher qualification having been appointed on a lower post. Such higher scale of pay was admissible only to such teachers/masters who had enhanced their educational qualification during the course of service. The petitioners, therefore, were not entitled to higher scale of pay. The learned counsel for the respondents submitted that keeping in view the fact that persons having similar qualification are getting higher scales of pay, as such this Court should not interfere with the impugned judgment. The C.W.P.No.3790 of 2006 17 submission of the learned counsel cannot be accepted for more than one reason. As the persons who have been granted higher scales of pay enhanced their qualification while holding their offices they had been allowed to continue to get a higher scale of pay in view of the concession made by the learned counsel appearing on behalf of the State. This Court, both in Wazir Singh and Kamal Singh Saharwat as indicated heinbefore, in no uncertain terms held that even such holders of such offices would not automatically be entitled to, on acquisition of a higher qualification, a higher scale of pay. The petitioners, as noticed, already had higher qualification and thus not entitled to benefit of any circular whatsoever. Unfortunately, this aspect of the matter has not been taken into consideration by the High Court. Furthermore, even an order cannot be passed under Article 142 of the Constitution which will be contrary to the statute or statutory rules. "
9. In this case, the respondents were in the pay scale of JBT teachers and similar claim was made. This was negatived by this Court. Apart from this, there is another direct decision on the similar issue. In Union of India v. Ashoke Kumar Banerjee wherein Fundamental Rules 22(I) (a) (1) came up for consideration before this Court. In this cazse, the respondent was a Junior Engineer in the pay scale of Rs.1640-2900 and he was granted the pay scale of Assistant Engineer in the pay scale of Rs.2000-3500. The respondent received the same benefit in advance while working as Junior Engineer on completion of 15 years' service and not actually functioning as Assistant Engineer. The respondent was held not entitled to further increment and fixation on promotion to the post of Assistant Engineer in the pay scale of Rs.2000-3500. In that context, their Lordships held as follows: (SCC p.242) " The respondent having received the same benefit in advance, while working as Junior Engineer and while not actually functioning as an Assistant Engineer, is not entitled to the same benefit of fresh fitment in the scale of Rs.2000-3500 when he is promoted as Assistant Engineer. This is because on actual promotion as Assistant Enginner, he is not being fitted into the 'timescale of the higher post' as stated in FR 22(I)(a)(1). That situation was already over when he got benefit on completion of 15 years. If he is to be given a second benefit on the basis of the same FR, then he would C.W.P.No.3790 of 2006 18 be getting more than his seniors, who might have got promoted earlier and might have got benefit of FR 22(I)(a)(1) only once. Such an anomaly is not intended by FR 22(I)(a)(1). "
10. Here in the present case, the difference is that the respondents are getting the higher pay scale i.e Masters' pay scales on acquiring higher educational qualification though in fact they were not promoted to the post of Masters. In Ashoke Kumar Banerjee functional pay of Assistant Engineer in the pay scale of Rs.2000-3500 was granted to the incumbent on completion of 15 years of service. In identical situation, the Court declined to grant refixation of pay as per FR 22(I)(a)(1) and same is the position in the present case. When the respondents were already getting the functional pay of Masters while working as JBT teachers, now they have been promoted in the pay scale of Masters. Therefore, they cannot get another fixation of pay which would amount to double benefit to the persons who are already working as Masters. Judicial fiat cannot create anomalous position against the statute. Hence, we allow all these appeals and set aside the impugned judgments of the Punjab and Haryana High Court. However, whatever benefits, if any, received by the respondents would not be recovered and they will not be entitled to fixation under Rule 4.4 of the Rules. No order as to costs.
Therefore, the issue is no longer res-integra and the same is covered by Partap Singh's case (supra).
In view of the aforesaid discussion, it is held that the petitioners, who were working as JBT/C & V Cadre (Hindi/Punjabi Teachers etc) in the same pay scale as that of the promotional post of Master/Mistresses would not be entitled to the grant of one additional increment on their promotion to the post of Master/Mistresses in the same pay scale on the ground of assuming higher responsibilities, especially in view of the Instructions dated 22.8.2006 (Annexure R.3) whereby the Administrative Department has categorically stated that their such aforesaid C.W.P.No.3790 of 2006 19 promotion does not confer any higher responsibility upon them. The validity of the Instructions dated 22.8.2006 (Annexure R.3) , which is challenged in one of the connected writ petitions, is thus upheld.
Therefore, in view of the above, the main petition bearing CWP No.3790 of 2006 is dismissed with no order as to costs.
In connected writ petitions being disposed of by this common order, wherein the petitioner(s) had been granted the benefit of additional increment and the same was sought to be withdrawn, the re- fixation/withdrawal of additional increment of/from the pay of the petitioner(s) is to be made w.e.f 22.9.2006 in view of the fact that the judgment of the Hon'ble Supreme Court in the case of Partap Singh was delivered on 22.9.2006, however, no recovery from the dates prior to the passing of the orders withdrawing the benefit in their cases shall be permissible and the recoveries, if any, made earlier shall be immediately refunded. The orders of withdrawing the benefit of additional increment shall operate prospectively and shall be deemed to be quashed to the extent of their retrospective operation.
In cases, where the petitioner(s) have retired after 22.9.2006, their pension shall be liable to be revised on such re-fixation in the same terms, as stated hereinabove/in the preceding para Petitioners in CWP No.11498 of 2008 besides the prayer on the above decided issue, have also prayed for benefit of proficiency step up under the Assured Career Progressive Scheme, which is stated to have been withheld on account of withdrawal of the benefit of additional increment. The impugned orders therein do not relate to the matter of A.C.P Scale and the petitioners have not substantiated their claim by producing any C.W.P.No.3790 of 2006 20 document to show that ACP benefit has not been allowed to them, therefore, their claim of grant of ACP benefit is not well founded, therefore not decided.
With the afore-stated observations and directions, all the writ petitions are dismissed with no order as to costs.
( JASWANT SINGH )
JUDGE
March 06 , 2009 ( JASBIR SINGH )
manoj JUDGE