Jharkhand High Court
Sanjay Kumar vs The State Of Jharkhand Through ... on 11 May, 2022
Author: Anubha Rawat Choudhary
Bench: Anubha Rawat Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5527 of 2008
1. Sanjay Kumar, Son of Sri Sita Ram Prasad, Resident of Behind
Cambrian Public School, Ranibagan, Bariyatu P.O. and P.S.
Bariyatu, Dist-Ranchi.
2. Rajive Kumar, Son of Late Uday Pratap Singh, Resident of +2
National High School, P.O. & P.S. Dumka, Dist-Dumka.
3. Mrinal Kant Singh, Son of Sri Jainendra Kumar Singh, Resident of
Rasikpur, P.O. and P.S. Malkhanpur, Dist-Bhagalpur.
4. Baidhnath Prasad, Son of Late S.N. Yadav Resident of C/o Dr.
Raghunath Prasad Near Birsa High School, Tiril Road, Kokar,
P.O. and P.S. Kokar, Dist-Ranchi.
5. Subash Chandra, Son of Late Satish Chandra Prasad Sinha,
Resident of Bank Colony, Pakur, P.O. & P.S. & Dist- Pakur.
6. Bibash Chandra Choudhary, Son of Late Jagdish Prasad Mandal,
Resident of Bharti Colony, P.O. and P.S. Sahebganj, Dist-
Sahebganj
7. Sanjay Kumar Sinha, Son of Sri Baikunth Narain Singh, Resident
of C/o Shekhar Rajak, Bhagalpur Road, Near Yag Maidan, P.O. &
P.S. Dumka, Dist-Dumka.
8. Uttam Kumar Gupta, S/o Sri R. N. Lal, Resident of Lower
Burdhwan Compound P.S. Lalpur, Dist-Ranchi.
9. Binay Kumar Thakur, son of Late Arjun Thakur, resident of Jai
Prakash Nagar, Arsandey, P.O. - Borey, P.S. - Kanke, District -
Ranchi, PIN - 835240
10.Ram Kumar Gautam, son of Dr. Kapildeo Prasad, resident of C/o
Malti Sahay, "Radha-Gauri Niwas", 29, Shradhanand Road
(Beside Congress Bhawan), Ranchi -834001
11.Veena Kumari, daughter of Kamal Kishore Singh, resident of
Village - Aura Bagicha, P.O. - Dharhara, P.S. - Dharhara, District
- Munger (Bihar).
12.Binod Kumar, son of Late Bhrigu Prasad, resident of C/o Shri T.P.
Singh, resident of Koiriadih Road, Jhumri Tilaiya, P.O. & P.S.
Jhumri Tilaiya, District - Koderma.
13.Ashok Kumar, son of Shri Shiv Narayan Singh, resident of C/o
White House, Mohalla - Mahuwa Dangal, Dumka - 814101
14.Ganesh Paswan, son of Late Chandradepp Paswan, resident of Qr.
No. 07, +2 Government Girls High School, Dumka, P.O. + P.S. +
District - Dumka.
15.Pradep Kumar, son of Sri Dilmohan Ram, resident of C/o Kedar
Tent House, Babupara, Dumka, P.O. + P.S. + District - Dumka,
PIN - 814101. ... ... Petitioners
Versus
1. The State of Jharkhand through Secretary, Human Resources
Development Department, Govt. of Jharkhand, Ranchi.
2. The Director, Secondary Education Directorate, Human Resources
Development Department, Govt. of Jharkhand, Ranchi.
3. The Secretary, Department of Finance, Govt. of Jharkhand, Ranchi
... ... Respondents
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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
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238/11.05.2022
1. Heard Mr. Piyush Chitresh, learned counsel appearing on behalf of the petitioner.
2. Heard Mrs. Vandana Singh, learned Sr. S.C. III appearing on behalf of the respondents.
3. This writ petition has been filed for the following reliefs: -
"For direction upon the respondents to fix the pay scale of petitioners to the tune of Rs. 6,500-10,500/ -, which is paid to the Lecturers/Teachers in the +2 General stream teachers in the Govt. School but the petitioners, who are instructors, are getting only pay scale of Rs. 5,000- 8,000/-, although the petitioners are entitled for payment of the pay scale after revision to the tune of Rs. 6,500-10,500/ - on par with other +2 Teachers in the school as juniors to the petitioner, i.e. Lab Assistant who are less qualified, are getting the same pay scale in comparison to the petitioners and to declare that the petitioners as Instructors are on a teaching job and they must also be brought in the regular cadre of teachers and be given all consequential benefits on par with the teachers in +2 schools."
4. Learned counsel for the petitioners submits that the petitioners are Instructors in schools run by Human Resources Department appointed by the then State of Bihar. The "vocational courses" were introduced in the State of Bihar in the year 1988 as per National Policy of Education, 1986 and various streams of vocational courses were sanctioned for various schools. The Vocational courses were introduced in two phases; first in 40 schools and thereafter in 108 schools, total being 148 schools. Out of them, 3 schools were under Welfare Department and remaining were under Human Resources Department. Vide Annexure - 6, the Vidyalaya Seva Board, advertised for full time Instructors with minimum qualification as degree / diploma in concerned trade for schools run by Human Resources Department which resulted in recruitment of, inter alia, the petitioners in the year 1993. A letter dated 16.06.1999 (Annexure - 7) was issued by the Welfare Department in connection with the post of Instructors to be appointed in residential schools under Welfare Department and the scale of pay was specifically mentioned for Instructors to be Rs.2000-Rs.3800 and corresponding scale of the same is Rs.6500 - 10,500.
5. The first point of the petitioners is that the post for Instructors was simultaneously sanctioned for the schools run by Human Resources Department as well as Welfare Department, the petitioners being Instructors in schools run by Human Resources Department are identically 3 placed in all respect when compared to the Instructors and accordingly the petitioners are entitled for parity of pay and therefore in the present writ petition they are claiming the pay scale of Rs.6500/- to Rs.10,500/-, although, they have been placed under pay scale of Rs.5000/- to Rs.8000/-.
6. The second point for claiming pay scale of Rs.6500/- to Rs.10500/- is comparison with Instructors appointed for schools run by Human Resources Department as back as in the year 1988 wherein the pay scale was mentioned in the advertisement which corresponds to pay scale of Rs.6500/- to Rs.10500/-. So far as advertisement at Annexure - 6 is concerned, it did not mention any pay scale but simply mentioned that pay scale would be as fixed by the State Government. It is submitted that pay scale mentioned in the advertisement of the year 1988 clearly reflected the pay scale fixed by the State Government.
7. The third point is claim of parity in the pay scale when compared to pay scale of Teachers of general streams. The learned counsel submits that the students of the vocational courses were equivalent to those who are intermediate students. For this, the learned counsel refers to letter dated 05.06.2007 (Annexure-9) issued by Jharkhand Academic Council to the Registrar, Vinoba Bhave University, wherein it was mentioned that intermediate vocational course examination is equivalent to the Intermediate of Arts and Intermediate of Commerce Examinations of the Jharkhand Academic Council and therefore a direction was issued to admit the students who have passed the Intermediate Vocational Examination to the B.A./B.Com Part-I class.
8. The learned counsel has referred to a report of the vocational education submitted by Jharkhand Academic Council to the Department of Human Resources Development, Government of Jharkhand, wherein with reference to the vocational schools and teachers, it has been mentioned that one full time Instructor and one full time Lab Assistant for each course are appointed on regular basis, but neither they were designated as per Govt. of India norms nor they were getting salary at par with teachers working with +2 level in general stream. It was mentioned that the teacher working in general stream were getting 6500-10,500, Instructor of vocational education were getting 5000-8000 and Lab Assistant of Vocational Education were also getting 5000-8000.
49. It has been further stated by the writ petitioners that Instructors are forming a part of separate and isolated cadre throughout the State and they do not have any cadre rules or any promotional rules and having no promotional avenues and after their appointment in the year 1993, they remained stagnant in the same scale. Further grievance of the petitioners is that in spite of 15 years of service, petitioners were in the same pay scale and have been deprived of A.C.P. and other time bound promotional scheme.
10. The Bihar State Vocational Teachers Association had also filed a representation before the concerned Minister of the State and had insisted that the Instructors were also imparting education as that of other teachers and therefore, the pay scale of Instructor should be same as that of the Lecturers/Teachers. It further appears that as per Annexure-1, dealing with the Vocational Education issued by N.C.E.R.T. with regard to qualifications, it was clearly mentioned as under: -
"In principle the status of the vocational teachers should be of the same rank as that of the academic stream so that their minimum qualifications should also be of the same level as per the was encase the CSS minimum qualification for selection of full-time teacher are as follows: -
S.No. Vocational Area Qualification
1. Agriculture M.Sc. (Agri)
2. Business and Commerce M. Com/M.B.A.
3. Engineering & Technology Bachelor Degree
4. Health & Paramedical M.B.B.S.
5. Home science M.Sc. Home Science
6. Humanities and others Master degree in the
field/Graduates from
professionals
Qualification for full time teachers vary with reference of each group of vocational course and availability of qualified persons at the salaries prevalent in the school system. Generally, a master's degree is the basic qualification for section of full-time vocational Teachers. In courses for which post graduates are not available (like Medical and Technological areas) and degree or diploma is the minimum basic qualification for the purpose. The vocational curricula developed by PSSCIVE mentions about the teaching staff and their qualifications. The selection procedure is the same as that of regular teachers in other areas and only preference is given to those who have more experience in the practical field of the vocation.
A person with good practical background should be appointed as Part time teachers. Part-time teachers should be obtained from amongst professionals in concerned vocation, even though they may not have formal qualifications (Degree diploma or a teacher 5 training certificate). The collaborating institutions should be the main source of supply of part-time."
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11. The learned counsel has also referred to the report of Fitment Committee (Annexure-11) with regard to entitlement of the petitioners (Instructors) in the pay-scale of the teachers, and has submitted that the demand of the petitioners was put forth and the Fitment Committee has recommended that if the Instructors are members of Subordinate Education Service, they are entitled to scale of Subordinate Education Service and if teachers, then they are entitled for the pay-scale of teachers and the relevant portion of the Fitment Committee Report has been annexed as Annexure-11. The learned counsel submits that Bihar State Vocational Teachers Association had approached the Fitment Committee and had stated that the Instructors were graduate and were doing similar job as that of +2 Lecturers and therefore, they be given the revised scale of Rs. 6500- 10,500. It was also stated by the Association that the scale provided to the Instructor in Kendriya Vidyalaya and Railways School was Rs. 6500- 10,500. The Fitment Committee recommended as follows: -
"The Fitment Committee in its recommendations in paragraph-12.4.2, Volume II of its Report has clearly stated that if the post of Instructor is in the Subordinate Education Service they will be entitled to the scale of that Service (the Basic Grade for the Subordinate Education Service has been fixed at Rs. 5500-9000 after comparison with Central Government and Union Territories) or if teachers then the pay scale of teacher. This Committee does not see any irrationality in this recommendation. Therefore, no change is recommended. As regards the post of Lab Assistant........................"
12. In the writ petition, it is the specific case of the petitioners that if the report of the Fitment Committee is accepted, then the present petitioners would be entitled to pay scale of teachers of regular streams.
13. The learned counsel for the petitioners has relied upon a judgement passed by Hon'ble Supreme Court in the case of State of Punjab and Ors. versus Senior Vocational Staff Masters Association and others reported in (2017) 9 SCC 379.
Arguments of the Respondent State
14. The learned counsel for the State has submitted that basically three issues are involved in this case.
A. Whether vocational instructors can be treated at par with teachers in 6 +2 schools?
It is submitted as follows: -
i. The vocational Instructors are not at par with trained teachers of government schools as they have been appointed on different eligibility criterion published through newspaper advertisement. They are not in the category of regular trained teachers at the nationalized school and hence they cannot be equated and equalized with general teachers. ii. The Petitioners were appointed under the scheme of Central Govt. and at that relevant time, no norms were decided. However, some eligibility criteria was decided by the Govt. of Bihar in consonance with the scheme of the Central Government. The petitioners were appointed on the post of Instructors as per the vacancy advertised by the Vidyalay Seva Board wherein eligibility criterion was fixed as intermediate qualification decree/diploma in the concerned trade with preference to be given to candidates having higher qualification. iii. It is pertinent to state here that the required minimum educational qualification on the post of Instructor was intermediate with degree/diploma, whereas the minimum educational qualification for appointment on the post of high school teacher is Graduate Trained and they are appointed against the sanctioned post of the Assistant Teacher in trained graduate pay scale.
iv. The case of the petitioners was considered by the Fitment Committee and thereafter by the Fitment Appellant committee. The Appellant Committee in its report at para 13.61 and 13.62 has dealt with the case of the petitioners for grant of the scale of Rs. 6,500-10,500/ - and after due consideration the Appellant Committee found no basis for interfering with the findings of the Fitment Committee and rejected their claim of enhancement of their pay scale.
v. Thereafter vide resolution No. 660 dated 08.02.1999 the pay of the government employee has been recommended department wise and as per recommendations of the Fitment Committee and the Appellant Committee the pay scale of the Petitioners post was fixed in the scale Rs. 5,000-8,000/-.
vi. The service rule and mode and method of appointment of vocational instructors have not yet been finalized and till date there is no service rule governing the service conditions of vocational instructors. However, the teachers of +2 schools, have fixed service rule and regular cadre.
vii. Thus, it is submitted that the eligibility criterion, the mode 7 and method of appointment of vocational instructors operates on a totally different page than that of regular teachers of high school and as such they can never be treated at par with the regular teachers.
B. Whether there is discrimination in the pay scale of the instructors placed under the Welfare Department with that of the Human Resource Department?
It is submitted as follows: -
a. Department of Schedule Tribes, Schedule Caste, Minority and Backward Caste Welfare has clarified by letter no. 659 dated 04.03.202 that: a) There are no rules for the instructors in the concerned department.
b. No instructors have been appointed in the department run school since bifurcation of Bihar and Jharkhand.
c. According to available record, there are 2 sanctioned in department run schools in Dumka. However, those posts are vacant and there has been no appointment on it ever since. d. Thus, there is no question of discrimination in the pay scale of the Instructor of the Welfare department with that of the Human Resources Department as there are neither any rules of appointment of Instructors nor has there been any appointment done in the Welfare department ever since the creation of the State of Jharkhand.
C. Whether section 84 & 85 of the Bihar Reorganization Act is applicable in the facts of the case?
It is submitted as follows: -
I. It is submitted that the petitioners were appointed by the Vidyalay Seva Board, by the then State of Bihar before the bifurcation of the State of Bihar and even in the State of Bihar the vocational Instructors are getting the pay scale of Rs.5,000- Rs.8,000 after the 5th pay revision and Rs. 9,300- 34,800/ - after 6th pay revision and grade pay of Rs.4,200. II. Thus, it is apparent that there has been no alteration in the service condition of the petitioners to their prejudice as the similarly situated vocational Instructors even in the parent state are also getting the same scale of pay as the petitioners are getting in the State of Jharkhand, i.e. the grade pay of Rs. 4,200/.
D. Whether policy decision taken by the State pursuant to orders passed by this Hon'ble Court be interfered with?8
It is submitted as follows: -
1) Pursuant to order passed in W.P.(S) No.2696/09, the State Government has passed various Order including, Order contained in Memo No. 1940 dated 20.10.2017, Order contained in Memo No. 4860 dated 27.12.2018 and Order contained in Memo No. 1883 dated 25.11.2020.
2) Accordingly, the pay scale of the petitioners has been fixed in the grade pay 4,200/- and they are in receipt of salary accordingly.
3) These Orders are not under challenge in the instant writ application. Moreover, these are policy decisions not hit by Article 14 of The Constitution of India and as such ought not be interfered in exercise of jurisdiction under Article 226 of The Constitution of India.
The learned counsel for the Respondent - State has relied upon following judgements in support of her case: -
2002 (6) SCC,72 (para 10) Order Dated 13.11.2017 passed in W.P.(S) No. 4200 of 2008 2022 SCC online SC 94 (para 16)
15. The learned counsel for the State has referred to a judgment passed by this Court in W.P.(S). No.4200 of 2008 and has submitted that at the time of consideration of parity between regular teachers and vocational teachers in the matter of being appointed to the post of Head Master, the parity has been rejected by this Court by a well-reasoned order. She has also submitted that the same principle applies in the present case also and therefore, there can be no parity between Instructor and regular Teachers. Rejoinder arguments of the Petitioners
16. The learned counsel for the petitioners has submitted that those decisions relating to recommendation of Fitment Committee will have effect only from 01.01.2006 and the petitioners are claiming their right to receive pay scale as per the advertisement by which they were recruited read with the advertisement of the year 1988, right from the date of their appointment. Further the petitioners are claiming parity of pay when compared to the similarly situated persons in the Schools under the Welfare Department. He submits that these matters are required to be 9 considered by this Court in this case which relate to the period prior to implementation of the Fitment Committee recommendation. Findings of this Court
17. After hearing the learned counsel for the parties, this Court finds that following points are involved in the present case: -
I. Whether the petitioner, who are getting pay scale of Rs. 5,000- 8,000/- being the Instructors in the schools under the Human Resources Department of the State of Jharkhand, can claim parity in the matter of pay-scale with the Lecturers/Teachers in the +2 General stream in the Govt. School who after revision, are getting the pay scale to the tune of Rs. 6,500-10,500/ -. II. Whether the pay scale mentioned in the advertisement of the year 1988 can be taken into consideration for determining the pay-scale of the petitioners appointed in the year 1993 pursuant to advertisement as contained in Annexure-6 where it has been simply mentioned that "payment of salary and allowances will be paid as per the pay scale fixed by the State Government"
III. Whether the petitioners, can claim parity of pay-scale with those Instructors of the schools under the Welfare Department on the strength of letter dated 16.06.1999 (Annexure - 7) issued by the Welfare Department of the then State of Bihar mentioning the pay- scale for the post of Instructors in the residential school being run by the Welfare Department as Rs.2000-3800 (corresponding revised scale being Rs.6500/- - 10,500/-). Point No.I
18. It is the specific case of the petitioners in the writ petition that if the report of the Fitment Committee is accepted, then the present petitioners would be entitled to pay scale of teachers of the plus -2 schools.
19. It is apparent from the records of this case that the Fitment Committee recommendation was followed by a decision of the State Government resulting in issuance of Gazette Notification of Resolution No. 660 dated 28.02.2009. The Gazette Notification dated 28.02.2009, inter alia, provided as follows: -
"Note-Regarding all Instructors/Vocational teachers in the different training colleges/10+2 schools at present drawing pay scale of Rs. 5000-8000 for such categories corresponding new pay scale/grade pay (4800) will be applicable specifically on fulfillment of recruitment qualification as mentioned in the 10 Central Govt. guide lines for vocational teachers/Instructors, if not then only Rs. 4200/- grade pay is admissible."
20. Under Schedule-III of the Resolution No. 660 dated 28.02.2009, the scale of pay of 10+2 Schools Instructors was placed in the scale of Rs. 4800/-. However, untrained Lecturers/Instructors were entitled to Grade Pay of Rs. 4200/-. A request was made to undertake an exercise in respect of verification of revised pay scale granted to individual incumbent i.e., the instructors and to recover the excess Grade Pay.
21. It further appears from the records of this case that after the recommendation of the Fitment Committee, the pay-scales of the Instructors were fixed. In W.P. (S) No. 2696/2009 and other analogous cases, the petitioners were the Instructors in vocations course in +2 School inducted pursuant to advertisement issued in the year 1991 and it was their specific case that they possessed the criteria specified by the Central Government under the Scheme of Vocational Technical Education i.e., they were having post graduate degree in such vocational subjects like Agriculture, Business and Commerce, Home Science, Humanities and Others. There was a dispute in connection with fixation of pay and recoveries were also directed. The State had taken a specific stand in the counter-affidavit filed in the case that if the incumbents to the post of Instructors/vocational teachers in +2 schools in the State of Jharkhand fulfill the recruitment qualification as prescribed by the Central Government Notification, they would be entitled to the Grade Pay of Rs. 4800/- otherwise they would be placed in the Grade Pay of Rs. 4200/-. Ultimately, it was held that in sum and substance, the respondents were to abide by the resolution contained in Gazette Notification dated 28.02.2009 and following directions was passed: -
"It therefore, appears that whether individual petitioners in the aforesaid writ petitions do possess the necessary recruitment qualification prescribed under the Central Government guidelines or not is dependent on determination of facts upon the scrutiny of individual credentials/service records of the petitioners before undertaking such exercise to reduce the Grade Pay of Rs. 4800/- in each individual case. As per the resolution dated 28.02.2009, if they possess requisite qualification as prescribed by the Central Government, then there is no reason why Grade Pay should be reduced. In such circumstances, therefore, when on the main legal issue, there is no dispute about the interpretation of Resolution dated 28.02.2009 in question, the concerned respondents i.e. the District Education Officer of the respective districts, where these individual petitioners are working, are directed to undertake an 11 exercise of verification of individual service records of the petitioners in question so as to come to a finding whether they have fulfilled the required recruitment qualification as prescribed under the Central Government guidelines for being entitled to the Grade Pay of Rs. 4800/-. Dependent upon such exercise, any consequential action would be taken.
Let such exercise be undertaken within a period of 12 weeks from the date of receipt of a copy of this order. The general direction issued vide letter dated 18.04.2009, Annexure-6, by the Secretary, Finance Department would be carried out in the manner as indicated hereinabove. If the amount has wrongly been recovered and if the petitioners are found to be having requisite minimum qualification as prescribed under the Central Government guidelines, excess amount recovered in case of individual petitioner's, shall be refunded thereafter."
22. There has been a number of cases in connection with implementation of Fitment Committee recommendation and Resolution No. 660 dated 28.02.2009 which has led to passing of various orders by the State Government including orders 20.10.2017, 27.12.2018 and 25.11.2020 which admittedly have been challenged in various writ petitions which are pending before this Court. Accordingly, this Court is not inclined to enter into the arena of implementation of Fitment Committee recommendation and follow up policy decision of the State Government as per Resolution No. 660 dated 28.02.2009 and subsequent follow up orders as those decisions are not the subject matter of the present case though the same have been brought on record vide supplementary counter affidavit dated 08.04.2022. Admittedly, Resolution No.660 dated 28.02.2009 has come during the pendency of the writ petition. Accordingly, the point no. I and its consequences are left to be considered in the pending writ petitions. Point No.II
23. This point is independent of the Point No.I. The following facts from the records of this case are important to decide this point: -
(a) The vocational programme as per National Policy of Education, 1986 was introduced and was implemented from 1988 in the erstwhile State of Bihar at +2 level and 25 vocational courses in six major areas were introduced throughout the State in the year 1991 by the Ministry of Human Resources Development Department, Government of Bihar in 148 schools.
(b) The vocational courses were introduced in two phases; first in 40 schools and second in 108 schools, total being 148 schools. Out of them, three schools were under Welfare Department and 12 accordingly, vocational teachers were also required to be appointed in the residential school run by the Welfare Department.
(c) Vide Annexure - 6 to the writ petition, Vidyalaya Seva Board advertised for 324 full time Instructors of the Human Resources Development Department and the minimum qualification prescribed for Instructors was degree/diploma in the concerned trade and preference was to be given to higher education for the post of Instructors. Although, the pay scale was not mentioned in the advertisement, but it was clearly mentioned that the payment of salary and allowances will be paid as per the pay scale fixed by the State Government.
(d) In para 12 of the writ petition, the petitioners have stated that an advertisement was issued for the appointment on the post of Instructor in the year 1988 by the Human Resources Development Department. The said advertisement of the year 1988 has been brought on record by the petitioners vide supplementary affidavit dated 15.02.2022 and it has been mentioned in para 3 of the affidavit that an advertisement was published by the respondents for recruitment of Instructors in 154 posts in Human Resources Development Department in the year 1988 in the pay scale of 850-
30-1270 efficiency bar upto 30-1360 which corresponds to 1640- 2900 which is 6500-10,500 in the replacement scale.
(e) It has also been mentioned in the said affidavit that the petitioners were recruited vide advertisement in the year 1993 and it is contended by the petitioners that in view of clear-cut stipulation that the pay scale of the Instructors shall be fixed as per State Government, the advertisement of the year 1988 can be safely referred where the pay scale for Instructors as fixed by the State Government has been clearly mentioned.
24. Thus, the petitioners have referred to the advertisement of the year 1988 published by Human Resources Department, which had specifically mentioned the pay scale, to submit that the appointment of the petitioners in the year 1993 pursuant to advertisement at Annexure-6, which mentioned that the payment of salary and allowances will be paid as per the pay scale fixed by the State Government, ought to have been made in the same pay scale as that of the advertisement of the year 1988 which 13 specifically mentioned the pay scale fixed by the State Government for the post of Instructors in the schools under the same Human Resources Department. Thus, the petitioners are seeking parity in the matter of pay- scale as compared to the Instructors appointed under same Human Resources Department pursuant to advertisement of the year 1988, on the strength of specific stipulation in the advertisement pursuant to which they were selected in the year 1993 that the pay scale of the instructors shall be fixed as per State Government.
25. This Court is of the considered view that the aforesaid aspect of the matter is required to be considered by the respondents. Apparently, in the advertisement which led to recruitment of the petitioners, the pay scale was mentioned as the pay scale of the instructors shall be fixed as per State Government, and the petitioners have recently brought on record the said advertisement of the year 1988 which provided specific pay-scale for Instructors in the schools under the same Human Resources Department. To examine this aspect of the matter, the concerned authority will have to closely look into the records to figure out the as to whether there was any fixation of pay scale by the State Government in terms of the stipulation in the advertisement that the pay scale of the instructors shall be fixed as per State Government and mere mention of a particular pay scale in the advertisement of the year 1988 is not conclusive although it make out a strong case in favour of the petitioners who are claiming the same pay- scale as has been mentioned in the advertisement of the year 1988. For examination of this point, the matter is required to be remitted to the concerned respondent.
Point No.III
26. The petitioners have claimed parity in the matter of pay scale with that of the Instructors under the Welfare Department. For this, the petitioners have referred to letter dated 16.06.1999 (Annexure - 7) issued by the Welfare Department for the post of Instructors to be appointed in the residential school being run by the Welfare Department where the scale of pay has been mentioned as 2000-3800 whose corresponding pay scale after revision is 6500-10,500. It has been argued by the learned counsel for the petitioners that the post for the Welfare Department as well as the Human Resources Department for Instructors were simultaneously created and therefore, there has to be parity of pay between those who are under the 14 Welfare Department and those under the Human Resources Development Department as other relevant factors including qualification etc. are identical. It was also submitted by the learned counsel for the petitioners that the said letter dated 16.06.1999 (Annexure-7) issued by the Welfare Department is binding on the State of Jharkhand in terms of Sections 84 and 85 of Bihar Reorganization Act and therefore, the petitioners are entitled to said pay scale as being paid to the Instructors appointed under the Welfare Department.
27. The records of the case reveal that on 03.01.2022, the aforesaid fact regarding difference of pay scale in the Human Resources Department and Welfare Department was recorded and at the request of the State, the matter was adjourned for filing short affidavit to explain the stand of the State with particular reference to para 14 of the writ petition. It is the specific case of the respondent State that Notification No.3103 dated 16.06.1999 (Annexure-7) has not been adopted by the School Education and Literacy Department (Human Resources Development Department) Government of Jharkhand and therefore it is not applicable to the instructors working in +2 high school in the State of Jharkhand. Further stand has been taken by the State that the Director, Secondary Education, Bihar, Patna informed / communicated the State of Jharkhand vide Letter No.215 dated 11.05.2017 that the instructors in +2 schools were appointed in the pay scale under 4th pay revision in the scale of Rs.1500-2750 and under 5th pay revision which was revised to Rs.5000-8000 and under 6th pay revision, it was revised to Rs.9,300-34,800 with grade pay of Rs.4200/- . It is the case of the respondents that even the notification of appointment issued by the State of Bihar appointing the petitioners on the post of Instructors as per advertisement published by Vidyalaya Seva Board on 28.06.1993 reflects the pay scale of Rs.1500-2750 which has also been brought on record by the said affidavit dated 02.02.2022. It is also the case of the respondents that there is no question of discrimination in the pay scale of the Instructor of the Welfare Department with that of the Human Resources Department as there are neither any rules of appointment of Instructors nor has there been any appointment done in the Welfare Department ever since the creation of the State of Jharkhand.
1528. In response of affidavit dated 02.02.2022, the petitioners have taken a stand that the letter dated 16.06.1999 (Annexure-7) having been issued by the State of Bihar prior to Bihar Reorganization Act, 2000 is binding on the State of Jharkhand in terms of Sections 84 and 85 of Bihar Reorganization Act, 2000. However, this argument on behalf of the petitioners has been opposed by the learned counsel appearing on behalf of the respondent- State.
29. So far as the argument of the petitioners with regard to the parity of pay scale between the Instructors recruited under Human Resources Development Department and Welfare Department is concerned, this Court finds that it is not in dispute that posts for both the Departments were created by the same notification. However, it is not clear from the records as to what was the requisite qualification for recruitment of Instructors in the Welfare Department and what was the pay scale of Instructors in schools under Welfare Department when the petitioners were recruited in the year 1993 although the pay scale was mentioned in the notification for appointment. Admittedly, the pay scale was not mentioned in the advertisement by which the petitioners were recruited. The respondents have brought on record the notification by which the petitioners were appointed which also indicates the pay scale of the petitioners granted at the time of recruitment but the case of the petitioners is that the Instructors in the Welfare Department were getting higher pay scale. This Court also finds that so far as Annexure - 7 to the writ petition is concerned, which is dated 16.06.1999, wherein the pay scale for Instructors as under the Welfare Department has been shown as Rs.2000 to 3800, which is exactly the scale being claimed by the petitioners. However, it is not clear as to whether this was the pay scale even in the year 1993, when the petitioners were recruited. It is also not clear from the records as to under what circumstances, the State of Bihar has not implemented letter dated 16.06.1999 (Annexure- 7) though, it has come on record that the pay scale being paid to the Instructors in State of Bihar is not as per Annexure - 7. This Court is of the considered view that merely because the State of Bihar has not implemented the Notification No.3103 dated 16.06.1999 (Annexure - 7) which was undisputedly issued prior to the creation of the State of Jharkhand, the same by itself cannot be a ground to totally discard the said communication. However, it is yet to be examined as to what 16 relevance it will have on the recruitment of the petitioners way back in the year 1993.
30. The State of Jharkhand has also taken a stand in the counter-affidavit that there are no rules for Instructors in the Welfare Department and no Instructors have been appointed in the department run school since bifurcation of Bihar and Jharkhand. It has also been stated that according to available record there are two sanctioned posts in the department run school in Dumka, however, those posts are vacant and there have been no appointment on it ever since and consequently the State has taken a stand that there is no question of discrimination in the pay scale of the Instructors of Welfare Department with that of Human Resources Department as there are neither any rules of appointment of Instructors nor has there been any appointment done in the Welfare Department ever since the creation of State of Jharkhand. However, it is not the case of the respondents that after the creation of the posts of Instructors in the schools run by Welfare Department and even till the year 1993 and prior to creation of State of Jharkhand, no appointments of Instructors were made in the schools run by the Welfare Department. The alleged differential treatment of the petitioners in the matter of pay scale under the Human Resources Department and those of Instructors under the Welfare Department is required to be considered by the respondents.
31. This Court finds that no decision as such has been taken by the respondents with regard to parity of pay scale between the Instructors recruited by the Human Resources Development Department and that of the Instructors recruited by the Welfare Department. Although the said point regarding parity of pay scale between the Instructors of the Welfare Department and Instructors of the Human Resources Development Department has been argued at length by both the parties on the basis of materials available on record.
32. From the records of this case, no distinction has been sought to be drawn between the nature of work being performed by the Instructors under the Welfare Department and those under the Human Resources Development Department. However, this Court is of the considered view that this aspect of the matter has to be considered by the concerned authority as it requires close examination of all the relevant aspects 17 regarding parity of pay scale in the light of the judgement referred to in the later part of this judgement.
33. Considering the aforesaid materials which have been brought on record by the parties including the fact that the post of Instructors in the Welfare Department as well as that of Human Resources Development Department were simultaneously created, though the recruitment process were differently undertaken by both the departments, it is not clear from the records of this case as to whether the minimum qualification at the time of recruitment of Instructors in the Welfare Department and at the time of recruitment in the Human Resources Development Department and other conditions were same or not. The letter issued by State of Bihar as contained in Notification No.3103 dated 16.06.1999 as contained in Annexure-7 cannot be outrightly rejected although much exercise is required to be done in connection with the said communication particularly with regard to the pay scale of Instructors in the Welfare Department at the time when the petitioners were recruited. The entire materials in connection with the said communication is not on record. There are several factors for deciding the point of parity of pay scale and it cannot be lost sight of the fact that the petitioners were recruited as back as in the year 1993.
34. In the judgment passed by the Hon'ble Supreme Court reported in (2002) 6 SCC 72 (State of Haryana and Anr. Vs. Haryana Civil Secretariat Personal Staff Association), it has been held in para 10 that the claim of equal pay for equal work in not a fundamental right vested in any employee though it is a constitutional goal to be achieved by the Government. Fixation of pay and determination of parity in duties and responsibilities is a complex matter which is for the executive to discharge. While taking a decision in the matter, several relevant factors are to be taken into consideration including the prevailing financial position and capacity of the State Government to bear the additional liability on revised pay scale. The Hon'ble Supreme Court has elaborately considered the matter regarding fixation of pay scale and has held that the court should avoid giving a declaration granting a particular scale of pay and compel the government to implement the same and the court should approach such matters with restrain and interfere only when they are satisfied that the decision of the Government is patently irrational unjust and prejudicial to a 18 section of employees and the Government while taking the decision has ignored factors which are material and relevant for a decision in the matter.
35. The learned counsel for the respondents has rightly referred to a judgment passed by Hon'ble Supreme Court reported in 2022 SCC Online SC 94 (State of Madhya Pradesh Vs. R.D. Sharma and Anr.) to submit that equation of post and determination of pay scales is the primary function of the executive and not the judiciary and therefore ordinarily courts will not enter upon the task of job evaluation which is generally left to the expert bodies like the Pay Commissions and that such job evaluation exercise may include various factors including the relevant data and scales for evaluating performances of different groups of employees, and such evaluation would be both difficult and time consuming, apart from carrying financial implications.
36. In the judgment passed by Hon'ble Supreme Court reported in (2019) 3 SCC 547 (Punjab State Power Corporation Limited Vs. Rajesh Kumar Jindal and Ors.), it has been held that the burden of proof is on the person, who claims parity of pay scale; para 20 and 21 of the said judgement is quoted as under:
"20. Ordinarily, the scale of pay is fixed keeping in view the several factors i.e.
(i) method of recruitment;
(ii) Level at which recruitment is made;
(iii) the hierarchy of service in a given cadre;
(iv) minimum educational/technical qualifications required;
(v) avenues of promotion;
(vi) the nature of duties and responsibilities; and
(vii) employer's capacity to pay. Etc.
21. It is well settled that for considering the equation of posts and the issue of equivalence of posts, the following factors had been held to be determinative:
(i) The nature and duties of a post;
(ii) The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;
(iii) The minimum qualifications, if any, prescribed for recruitment to the post; and
(iv) The salary of the post (vide Union of India v. P.K. Roy)"
37. This Court is of the considered view that respondents are required to enter into an exercise to consider the claim of parity of pay scale between the petitioners recruited under the Human Resources Development 19 Department and those recruited under the Welfare Department considering the year of recruitment of the petitioners and all the aforesaid aspects of the matter as mentioned in the aforesaid judgment passed by Hon'ble Supreme Court and any other material which may be found relevant. If required, the respondents may call for more information from the State of Bihar particularly with regard to the background of issuance of the Letter No.3103 dated 16.06.1999 (Annexure - 7). The point no. III is accordingly decided.
38. In view of the aforesaid findings with regard to Point Nos.II and III, the matter is remitted to the Respondent No.1 to consider the case of the petitioners in the lights of the above discussions, who are claiming pay scale of Rs.6500 to Rs.10500/- on the basis of earlier advertisement of the year 1988 for recruitment of Instructors in the schools under Human Resources Development Department where the pay scale was clearly mentioned and are further claiming parity of pay scale with the Instructors of schools under Welfare Department.
39. The petitioners shall file a detailed representation before Respondent No.1 disclosing the particular facts on the basis of which they are claiming the pay scale of Rs.6,500 to Rs.10,500/- with regard to the Point Nos. II and III and shall also give specific instance of the persons recruited as Instructors under the Welfare Department who were granted higher pay scale than that of the petitioners. The Respondent No.1 is directed to pass a reasoned order within a period of six months from the date of receipt of a copy of the representation after giving an opportunity of hearing to a representative of the petitioners and communicate the reasoned order to the petitioners through speed post at the address that may be provided by the petitioners in their representation.
40. This writ petition is accordingly disposed of.
(Anubha Rawat Choudhary, J.) Saurav/Mukul