Punjab-Haryana High Court
State Of Haryana And Another vs National Fitness Corps Teachers ... on 11 January, 2013
Bench: A.K.Sikri, Rakesh Kumar Jain
LPA No.182 of 2008 [1]
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
LPA No.182 of 2008
Date of decision:11.01.2013
State of Haryana and another ...Appellants
Versus
National Fitness Corps Teachers Association and another ...Respondents
CORAM: Hon'ble Mr. Justice A.K.Sikri, Chief Justice
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mr. B.S.Rana, Addl. A.G., Haryana.
Mr. R.K.Malik, Senior Advocate, with
Mr. K.K.Chahal, Advocate, and
Mr. Dheeraj Chawla, Advocate, for the respondents.
*****
RAKESH KUMAR JAIN, J.
By way of this order, we shall dispose of three appeals bearing LPA Nos.182 and 183 of 2008 and 1336 of 2012 as the questions of law and facts involved in these appeals are similar.
As a matter of fact, the order passed in CWP No.5816 of 1994 has been followed in the latter two writ petitions bearing CWP Nos.2071 of 1986 and 13572 of 1989. Hence, the facts are being extracted from CWP No.5816 of 1994 much-less LPA No.182 of 2008.
In short, in the year 1954, the Government of India (Ministry of Education) introduced the National Disciplined Scheme which was re-designated as National Fitness Corps (hereinafter referred to as the "NFC") in the year 1965. The respondents, under that Scheme, were LPA No.182 of 2008 [2] ***** appointed as Instructors in the following pay scales:-
"i) Instructors (Junior Grade): Rs.110-200
ii) Instructors (Senior Grade II): Rs.150-240
iii) Instructors (Senior Grade I): Rs.210-320"
While the Instructors were working as employees of the Central Government, a proposal was made for their transfer to the administrative control of the State Governments in the year 1965. Consequently, the Instructors of NFC were put under the control of State of Haryana in the year 1972 but they continued to be the employees of the Union of India. Thereafter, vide policy decision dated 14.10.1976, Instructors under the NFC were decided to be absorbed in the State service w.e.f. 01.07.1976 and were decided to be paid the following pay scales:-
Posts of Central Pay Scale State Pay Scale Instructors Junior Grade Rs.110-200 Rs.125-250 (Matric & 1 year course of C.P.Ed.
Senior Grade Rs.150-240 Rs.250-300
(Selection grade)
Senior Grade Rs.210-320 Rs.220-400
(B.A. & D.P.Ed. Course)
Rs.400-800
(Selection grade)
The State of Haryana accordingly issued letter dated 07.09.1976 laying down the terms and conditions for absorption of the services of the Instructors (NFC) in the State cadre. 311 temporary posts of PTIs (NFC) and 14 temporary posts of DPEs (NFC) were created and the absorption was made with the following terms and conditions:-
"i) that these employees will be kept in a separate LPA No.182 of 2008 [3] ***** block namely P.T.I. (NFC) (without disturbing their inter se seniority in the respective grades) in the cadre of physical education teachers of the State Education Deptt.
ii) that 3 Senior Grade I and II Senior Grade II N.D.S. Instructors will be absorbed in the posts of DPEs (NFC) and 311 Junior Grade I NDS Instructors will be absorbed in the posts of PTIs (NFC). The minimum qualification prescribed for respective State Pay Scales are relaxed where-ever necessary, in the case of those who do not have qualifications prescribed by the State Government for these posts at the time of their absorption.
Iii) that from the date of absorption in the State cadre, the N.D.S. Instructors will be entitled to allowances as admissible to other State Government employees of this cadre.
iv) that the pay and allowances an employee get under the Central Government at the time of absorption in the State Government service will be protected. For this purpose the allowances to be protected are Dearness Allowance, Dearness Pay, Interim relief and Additional Dearness allowances.
v) that their pay in the State Scales will be fixed in accordance with PFR 22(a)(ii) or the correspondence State Government Rules:
vi) that after absorption these employees will be governed in all respects, by the State Governments State Rules/orders amended/issued by the State Government from time to time and will be treated as State Government employees for all purpose.
vii) that the pension and gratuity to those employees will be paid as per State Government Rules after giving them the benefit of their previous service with the LPA No.182 of 2008 [4] ***** Central Government/the Central Government will lateron re-imburse the expenditure on this account.
viii) that it will be a diminishing cadre. As such, the posts that fall vacant due to retirement, resignation etc. in the lower grade will be absolished. Corresponding reduction will be made in the "Selection Grade" also so that only the required percentage of posts in the Selection Grade is maintained at any point of time. But if a vacancy occurs in higher grade posts it will be filled by promotion on the basis of seniority cum merit from among these employees in the lower grade cadre and the resultant lower grade post will stand abolished.
ix) that the total expenditure on pay, allowances etc. of the NDS Instructors will continue to be re-imbursed by the Government of India to the State Government till they remain in the cadre of PET in which they are absorbed by the State Government. The expenditure on their pension gratuity will also be borne by the Government of India. Besides, expenditure on the pay and allowances of the House-Keeping staff engaged by the State Government for this diminishing cadre shall also be borne by the Government of India for so long as Government meets pay and allowances for the instructional staff, and
x) that only those N.D.S. Instructors will be absorbed in the State Service who join the State service latest by 31st October, 1976."
It is pertinent to mention that there was no revision in pay scale on the ground that their services were going to be transferred to the administrative control of the respective State Governments. However, one of the Instructors in the State of Karnataka challenged the discriminatory attitude of the Union of India in not effecting revision of pay scales so far as LPA No.182 of 2008 [5] ***** the Instructors of NFC were concerned. Ultimately, in the case of Union of India and another v. V.R.G. Kashikar and another, 1986(1) S.C.C. 458, it was held by the Supreme Court that the Instructors were entitled to get revision of pay scale till the time their services were shifted to the respective State Governments. Accordingly, the Union of India revised the scales of the Instructors of NFC, absorbed by the State Government, as under:-
"II) N.D.S. Instructors Sr. Gd. II:
Old Pay Scale Revised Pay Scale Date from which benefits are to be given Rs.150-240 Rs. 170 -380 1-1-67 Rs. 190-425 21-12-67 Rs. 220-500 27.5.70 Rs. 250-550 27.5.70 Rs.440-750 1.1.73 III. N .D.S. Instructors Sr. Gd. I Old pay scale Revised pay scale Date from which benefit are to be given Rs. 210 -320 Rs. 250 - 470 1.1.67 Rs. 275-550 21.12.67 Rs.300-600 27.5.70 Rs.350-700 27.5.70 Rs. 550-900 1.1.73"
The Union of India decided to grant benefit of revision of pay scale to the respondents herein vide its letter dated 04.08.1988.
The entire argument of the learned State counsel in these appeals is that after absorption in the State cadre, the respondents were not entitled to get the revised pay scales of the Central Government which has legally been withdrawn having been released by the Central Government LPA No.182 of 2008 [6] ***** under a bona fide mistake as after absorption in the State cadre, their lien in the Central Services was over.
The similar argument was raised before the learned Single Judge as well who has referred to Clause 4(iv) of the order dated 14.10.1976 (attached as Annexure P-3 with the writ petition), which reads as under:-
"4(iv) That the pay and allowances an employee get under the Central Government at the time of absorption in the State Government service will be protected. For this purpose the allowances to be protected are Dearness Allowance, Dearness Pay, interim relief and Additional Dearness allowances."
The aforesaid Clause 4(iv) has been interpreted by the learned Single Judge in the following manner:-
"After hearing counsel for the parties, this Court is of the view that the writ petition deserves to be allowed. It is not in dispute that since the year 1965, the Central Government was contemplating transfer of services of Instructors, NFC, to the respective States. To implement that scheme, administrative control of the employees was shifted to the State of Haryana in the month of October, 1972. However, they continued to be employees of the Union of India. Ultimately, it was decided that they be absorbed in the State cadre w.e.f. July 1, 1976. Particular grade, which the employees were getting in the year 1976, was protected and equal scale of pay was granted to them under the State Government. Clause 4(iv) of order Annexure P-3 envisages the pay protection of the absorbed employees. It was also decided that service of the LPA No.182 of 2008 [7] ***** absorbed Instructors of NFC would be put in a separate diminishing cadre. The members of the petitioner continued to get pay scale, given to them vide order Annexure P-3. It is also an admitted fact that since the year 1967 till the year 1976, the Central Government did not revise pay scale of the Instructors of NFC supposedly on the presumption that their services were going to be transferred to the respective States. The employees continued to get the unrevised scale of pay while working with the Central Government. Matter went to the Hon'ble Supreme Court and in R.G.Kashikar's case (supra), it was observed that till such time the employees were absorbed in the State cadre, they continued to remain the employees of the Central Government and were held entitled to the same treatment, which was given to other Central Government employees. In view of judgment of the Hon'ble Supreme Court, pay of the Instructors, NFC, was revised vide order Annexure P-4 from 1967 till the time they continued on the roll of the Central Government.
Facts, mentioned above, clearly indicate that if the Central Government had revised pay scale of the Instructors, well in time, they would have been getting the higher pay scale as on July 1, 1976, which was given to them vide order Annexure P-4 in the year 1986 and implemented vide order Annexure P-5 in the year 1988. In Annexure P-3, ordering absorption of the Instructors, NFC, it is specifically mentioned that pay and allowances , which an employee was getting under the Central Government at the time of absorption in the State Government services will be protected.
In view of clause 4(iv), this Court feels that on revision of pay scale, from retrospective date, by the Central Government, Instructors, NFC, and other LPA No.182 of 2008 [8] ***** employees, who were absorbed, were entitled to get protection for their deemed increase in pay scales from July 1, 1976.
Furthermore, in view of terms and conditions of their absorption, as depicted in Annexure P-3, dated October 14, 1976, it is apparent that the Instructors, NFC, notionally remained employees of the Central Government. Clause 4(ix) lays down that total expenditure of pay, allowances etc. of the NDS Instructors would continue to be re-imbursed by the Government of India to the State Government till they remain in the cadre of PET, in which they are absorbed by the State Government. It was further provided that expenditure on their pension, gratuity etc. would also be borne by the Central Government. Besides expenditure on the pay and allowances of the house keeping staff engaged by the State Government for this diminishing cadre was also to be borne by the Government of India for so long as Government meets pay and allowances on the Instructional staff.
Above said condition clearly demonstrates that only administrative control was shifted to the State Government and notionally the employees were absorbed and put in a separate diminishing cadre. In view of this, they are entitled to get their pay protected.
In view of facts, mentioned above, these writ petitions are allowed. Order Annexure P-10 is set aside and it is directed that the PTIs, (NFC) and DPEs ( NFC) be given benefit of revised pay scale, as was given to them vide order Annexure P-4 w.e.f. July 1, 1976, which obviously means that the pay scale, which above mentioned employees would have been getting on July 1, 1976, after implementation of order Annexure P-4, be protected in view of terms and conditions of Annexure LPA No.182 of 2008 [9] ***** P-3 and they be also given benefit of subsequent revision of pay scale as was given to its other employees by the State of Haryana. Order Annexure P-6 dated February 9, 1989, is restored."
We have heard learned counsel for the parties in detail, perused the record and are of the considered opinion that there is no error in the order of the learned Single Judge which requires any interference in these appeals. It has rightly been observed that the Central Government was contemplating transfer of services of Instructors (NFC) to the respective State Governments and in order to implement that Scheme, administrative control of the Instructors (NFC) was shifted to the State of Haryana but they continued to be the employees of the Union of India and were decided to be absorbed in the State cadre w.e.f. 01.07.1976 with protection of pay scales in terms of Clause 4(iv) of order Annexure P-3. It is also not in dispute that there was no revision in the pay scales since the year 1967 till 1976 on the presumption that the services of Instructors (NFC) were going to be transferred to the respective States. It has been observed by the learned Single Judge that the Instructors (NFC) were notionally remained employees of the Central Government. Otherwise, the expenditure of pay and allowances etc. was continued to the reimbursed by the Union of India to the State Government till they remained in the cadre of PET, in which they are absorbed by the State Government. It was also provided that the expenditure of their pension, gratuity etc. would also be borne by the Central Government and the expenditure on the pay and allowances of the house keeping staff engaged by the State Government for this diminishing LPA No.182 of 2008 [ 10 ] ***** cadre was also to be borne by the Government of India.
In view of these facts and circumstances, it is unsafe to hold that the respondents would not be entitled to the benefit of revised pay scales of the Central Government because they were absorbed in the State services. Consequently, we do not find any merit in these appeals and as such, the same are hereby dismissed.
(A.K.Sikri) (Rakesh Kumar Jain)
Chief Justice Judge
11.01.2013
vinod*