Patna High Court - Orders
Keshav Kishore Sinha vs State Of Bihar & Ors on 20 July, 2010
Author: Mihir Kumar Jha
Bench: Mihir Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3426 of 1997
KESHAV KISHORE SINHA, son of late Chandra Kishore
Sinha, resident of village, P.O. Dharhara,
District Vaishali retired Games Teacher,
Muzaffarpur Institute of Technology, Muzaffarpur,
Patna ... Petitioner
Versus
1. STATE OF BIHAR through the Secretary,
Department of Science and Technology, Govt.
of Bihar, Vikash Bhawan, Patna
2. The Director, Department of Science and
Technology, Govt. of Bihar, Vikash Bhawan,
Patna
3. The Principal, Muzaffarpur Institute of
Technolgoy, Muzaffarpur
4. Member Secretary, University Grant
Commission, Bahur Shah Zafar Marg, New Delhi
110002
5. Secretary, All India Technical Education
Council, New Delhi
... Respondents
-----------
For the petitioner: Mr. Ganesh Prasad Singh,
Sr. Advocate with
Mr. M.P.Shukla, Adv.
For the respondents:Mr. Mayank Rukhaiyar,
A.C. to G.A.5
-----------
P R E S E N T
HON'BLE MR. JUSTICE MIHIR KUMAR JHA
O R D E R
(20.7.2010)
Mihir Kumar Jha,J.
Heard Mr. Ganesh Prasad Singh,
learned Senior counsel, assisted by Mr.
M.P.Shukla, learned counsel for the
petitioner and Mr. Mayank Rukhaiyar, A.C. to
G.A.5, for the State.
The prayer of the petitioner in
this writ application when it was filed on
8.4.1997read as follows:
"This petition is being filed for issuance of a writ in the nature of mandamus or any other appropriate 2 writ/ writ order and orders directing the respondents to grant him 1st personal promotion in the University Grant Commission scale of pay of Rs. 1200-1900 with effect from 23.9.80 and second time bound promotion in the U.G.C. scale of Rs. 1500-2500 on the effect from 1.7.88 on completion of 18 years and 25 years of the grant of U.G.C. scale like other teachers to Institute in accordance with the instructions contained in letter no. 2025 dated 17.5.83, 177 dated 20.1.90 and 379 dated 16.2.90."
After an exhaustive counter affidavit was filed explaining the ground of which the petitioner was not eligible to be granted either personal promotion in U.G.C. pay scale or 2nd time bound promotion in U.G.C. pay scale this Court had in course of hearing the petition passed an order on 24.11.2008 directing the Principal Secretary of Science and Technology Department to consider the grievance of the petitioner afresh and pass a speaking order which should be brought on record by filing a supplementary counter affidavit.
Pursuant thereto the Commissioner cum Secretary of the Department of Science and Technology has passed the reasoned order 3 on 3.9.2009 which has now been assailed separately by the petitioner by filing I.A.No. 7145/2009.
For the reasons mentioned in I.A.No. 7145/2009 this Court would accord
leave to the petitioner to assail the order passed by the Principal Secretary, Science and Technology Department dated 3.9.2009 (Annexure „A‟ to the supplementary counter affidavit).
Coming to the merits of this case as with regard to either the original prayer or amended prayer, the sole argument of Mr. Ganesh Prasad Singh, learned Senior counsel, is that once the authority had given the pay scale of Rs. 700-1600 and its revised pay scale of Rs. 2200-4000 of the post of Lecturer to the petitioner who was initially appointed in the Engineering College as a Sports teacher he will be deemed to be entitled to each and every benefit which a Lecturer of Engineering College is getting including pay scale and personal promotion of a teacher engaged in teaching work or in the Engineering College. It is for this purpose Mr. Singh was quite sanguine and stating the history of the case earlier 4 filed writ application, C.W.J.C.No. 7516/1993 and the said writ application was disposed of vide order dated 20.1.1994 wherein the claim of the petitioner for grant of pay scale extended to the Lecturers was sought to be canvassed. In this context the order of this Court dated 20.1.1994 being the sheet anchor of the submission of Mr. Singh needs to be quoted hereinbelow:
" After hearing the learned counsel for the parties we dispose of this application at this stage with a direction to the Secretary cum Commissioner, Department of Science and Technology, Govt. of Bihar as also the Director to dispose of the representation of the petitioner which has been forwarded by the Principal of the Institute of Technology, Muzaffarpur in his communication dated 28th July,1993. It is pointed out that the question raised by the petitioner for the reliefs to be granted to him such a U.G.C. scale is well covered by the decision rendered by this Court in C.W.J.C.No. 522/79, as contained in Annexure 4A as also the judgment delivered by the Supreme Court in Civil Appeal No. 500/82 and 199/92 contained in Annexure 7 and yet another judgment of this Court rendered in L.P.A.No. 30/87 as contained in Annexure 3.5
We have not expressed any opinion on the merit of the case one way or the other and the authorities concerned shall consider it in the light of the principles enunciated in the said judgment.
We hope and trust that the same
shall be disposed of within a
period of three months from the
date of receipt of a copy of this order."
From order of the Division Bench it would be clear that this Court did not decide the claim of the petitioner either of his being a teaching employee of the Engineering College or being entitled for the same. The Court only recorded the submission of the counsel for the petitioner that he was seeking parity with other employees either in terms of the order of this Court or the Apex Court.
As a matter of fact the consequential order which was passed on
20.4.1995 and that too on account of filing of a contempt application M.J.C.No. 1256/1994 was that the petitioner being still treated as a Sports teacher was given a pay scale of Rs. 700-1600 from 1.4.1973 to 1.4.1975 and again the pay scale of Rs. 2200-4000 with effect from 1.1.986. Such 6 order of the authority with a clear indication that the same shall not be treated to be the precedent by itself was good enough to either leave the matter as it was or had given a cause of action to the petitioner because he was not treated to be a teaching staff and his entitlement even on 20.4.1995, a few months before his retirement, to be treated as a non-teaching employee of the College. Therefore, merely because the pay scale of a lecturer was given to the petitioner, that would not mean that the petitioner became a teacher also entitled for all the benefits of either U.G.C. pay scale meant for teaching personnel or the time bound promotion in U.G.C. pay scale for such teachers. The grant of pay scale being one is a job of expert and always decided by the Pay Revision Committee. The petitioner had all along the opportunity to represent his case before the Pay Revision Committee or Anomaly Removal Committee and in fact the petitioner at no point of time could make out his case much less equate his post to work of a teaching employee of a College, namely, either the Assistant Professor, (Lecturer) 7 or the Associate Professor (Reader) of an Engineering College. It has to be always kept in mind that though the State of Bihar has been always taking into consideration grant of pay scales by the U.G.C. or A.I.C.T.E. for fixing the salary of the employees of the four Engineering College, the U.G.C. pay scale or A.I.C.T.E. pay scale ipso facto is not made applicable for the employees of the Engineering College unless recommended by the Pay Revision Committee and notified by the State Government. In such Pay Revision Committee report the post of sports teachers in an Engineering College is not a teaching post and therefore, what would really make the issue clear is paragraph 3 of the impugned order, about which Mr. Singh also has a strong reservation. In paragraph 3 of the order passed by the Secretary, it has been held as follows:
^^bl lEcU/k esa ;g mYys[kuh; gS fd Jh flagk dks ekuuh; mPp U;k;ky; ,oa ekuuh; mPpre U;k;ky; ds }kjk fofHkUu oknksa esa ikfjr U;k;kns'kksa ds vkyksd esa ekeys ds fu"iknukFkZ ;w0th0lh0@,0vkbZ0lh0Vh0bZ0 esa fufgr izko/kkuks@ a ca/kstks@ a 'kRrksaZ ds v/khu fnukad 01@04@73 ls :0 700&1600 rFkk 01@04@86 ls :0 2200&4000 dk osrueku Lohd`r fd;k x;k gSA ijUrq mDr osrueku oLrqr% mUgsa vuqekU; ugha FkkA D;ksfa d Jh flagk dks jkT; ljdkj ds v/khuLFk rduhdh laLFkkuksa esa dk;Zjr lgk;d izk/;kid ¼oRrZeku esa O;k[;krk inukfer½ dks Lohd`r osrueku :0 2200&4000 Lohd`r fd;k x;k gS tcfd os rduhdh laLFkkuksa esa iBu&ikBu gsrq fu;qDr f'k{kdksa dh Js.kh esa ugha vkrs gSA KkrO; gS fd Jh flagk ewy :i esa dhM+k f'k{kd gh Fks] ftuds fu/kkZfjr dRrZO;ksa esa lkekU; f'k{kdksa ds fy;s fu/kkZfjr iBu&ikBu dk dk;Z ugha vkrk gSA dzhM+k f'k{kd rFkk iBu&ikBu gsrq fu;qDr 8 f'k{kd dh fu;qfDr gsrq fu;qfDr dh izfdz;k] fu/kkZfjr 'kS{kf.kd ;ksX;rk@vgZrk i`Fkd&i`Fkd gS rFkk dk;Z dh izd`fr Hkh vyx vyx gSA tgka rd foHkkxh; i=kad 2025 fnukad 17@05@83 ds varxZr izFke O;fDrxr izksUufr fnukad 11@7@81 ls nsus dk iz'u gS mDr izksUufr dh O;oLFkk vfHk;a=a;.k egkfo|ky;ksa ds lgk;d izk/;kid ¼oRrZeku esa O;k[;krk inukfer½ ij ykxw gksrh gS ftudh ekSfyd 'kS{kf.kd ;ksX;rk ch0Vsd@LukrdksRrj gksrh gS] ,sls f'k{kdksa dks ,e0Vsd@ih0,p0Mh0 mikf/k /kkjd gksus ij 13 o"kZ ds ckn rFkk vU;Fkk 18 o"kZ ij lg izk/;kid ds in ij O;fDrxr izksUufr vuqekU; gksrh gSaA blh rjg i=kad 379 fnukad 16@02@90 ds varxZr 25 o"kksZas dh lsok iwjh djus ij f}rh; dkycn~/k izksUufr dh O;oLFkk Hkh vfHk;a=.k egkfo|ky;ks@ a iksfyVsdfud laLFkkuksa @[kuu laLFkkuksa ds lg izk/;kikdsa ij ykxw gksrh gS tks vfHk;a=.k@foKKu@ekuork fo"k;sa ds iBu ikBu gsrq fu;qDr@izksUur gksrs gSa rFkk ftudh 'kS{kf.kd ;ksX;rk mUgha fo"k;ksa esa gksrh gSa vr% foHkkxh; i=kad 2025 fnukad 17@05@83] i=kad 177 fnukad 22@01@90 rFkk i=kad 379 fnukad 16@02@90 esa fufgr O;fDrxr izksUufr@dkycn~/k izksUufr Jh flagk dks vuqekU; ugha gksrh gSA Jh flagk dks foRr foHkkx] fcgkj iVuk ds ifji= la0 10770 fnuakad 20@12@81 rFkk i=kad 4245 fnukad 16@07@85 ds vUrxZr ,e0vkbZ0Vh0 eqtIQjiqj ds dk;kZy; vkns'k la0 5143 fnukad 23@12@95 ds }kjk fcgkj ljdkj ds vU; ljdkjh lsodksa dh Hkkafr fnukad 01@04@81 ls osrueku :0 730&1080 esa izFke dkycn~/k izksUufr nh x;h gSA tgka rd mi;qZDr O;oLFkk ds varxZr 01!04!86 ls osrueku :0 785&1250@& ¼viqujhf{kr½@:0 1400&2600¼iqujhf{kr½ esa f}rh; dkycn~/k izksUufr nsus dk iz'u gS] Jh flagk dks mDr osrueku ls mPprj osrueku :0 2200&4000 fnukad 01@01@86 ds izHkko ls iwoZ esa gh Lohd`r fd;k tk pqdk gSa vr% mUgsa mDr f}rh; dkycn~/k izksUufr Hkh vuqekU; ugha gksrh gSA** Once this aspect becomes clear that the job of Sports Teacher, a post held by the petitioner till the date of his retirement on 31.7.1995 was entirely different than a teaching employee of a lecturer or reader (Assistant Professor and Associate Professor of a Engineering College), the qualification required for this post was also at variance and the procedure for appointment for this post not comparable in any manner, the plea of the petitioner to claim benefit of all future 9 higher post of lecturer and that too in U.G.C. scale is absolutely unimaginable. The petitioner was a simple graduate and had only completed a course of physical education and if thereafter the respondents were gracious enough to make him eligible to draw his salary in the higher pay scale which was equivalent to lecturer to which he was actually not entitled in law, the matter could not have been thereafter allowed to be agitated by the petitioner by seeking parity of the year 1983 which was available to him when he had filed the first writ application.
As a matter of fact both the prayer made initially in the writ application either with regard to personal promotion or time bound promotion was/is covered by the principle of resjudicata, inasmuch as the petitioner had all the occasion to raise such prayer at that point of time but he did not do so. Had it been not done the petitioner could have assailed the order dated 20.4.1995 which was passed before his retirement and therefore, even by the proposition of law the petitioner cannot claim the benefit of salary.10
The plea of the learned Senior counsel that once the petitioner was granted an equivalent pay scale of a Lecturer, as prescribed in UGC pay scale, he would be in future entitled for all such enhancement/ increase in the pay scale of a Lecturer/ Reader/ Professor seems to be one of desperation and must be rejected. The State Government in the case of Engineering College employees has been fixing pay scale for non-teaching employees. The petitioner was admittedly a non-teaching employee in capacity of a Sports teacher. For such Sports teacher the Government while fixing pay scale and prescribing norms of pay fixation had taken many factors including the responsibility of job, the requirement of the post, qualification etc. that is how the job of fixation has always been held to be the job of experts. Reference in this connection may be made to the judgment of the Apex Court in the case of State of Delhi Veterinary Association vs. Union of India, reported in (1984) 3 SCC 1, wherein it was held as follows:
"The degree of skill, strain of work, experience involved, training required, responsibility 11 undertaken, mental and physical requirements, disagreeableness of task, hazard attendant on work and fatigue involved are, according to the Third Pay Commission, some of the relevant factors which should be taken into consideration in fixing pay scales. The method of recruitment, the level at which the initial recruitment is made in the hierarchy of service or cadre, minimum educational and technical qualifications prescribed for the post, the nature of dealings with the public, avenues of promotion available and horizontal and vertical relativity with other jobs in the same service or outside are also relevant factors."
Once this aspect would become clear that the Government had never treated the Sports teacher in an Engineering College to be holding a teaching post in an Engineering College and that the Sports teacher or Coach was always included in non-teaching post it would be quite easy for this Court to reject the next limb of submission of "equal pay for equal work." This aspect of the matter also stands settled in the judgment of the Apex Court in the case of Union of India vs. Tarit r1 Das, reported in (2003) 11 SCC 658, wherein it was held as follows:
12
"In the case of State of U.P. V. J.P. Chaurasia reported in (1989) 1 SCC 121 it was pointed out that whether two posts are equal or should carry equal pay, depends on several factors. It does not depend just upon either the nature of work or the volume of work done.
Primarily, it requires among others, evaluation of duties and
responsibilities of the respective posts by the competent authorities constituted for the purpose and courts cannot ordinately substitute themselves in the place of those authorities. The quantity of work may be the same but the quality may be different. That cannot be determined by relying upon averments in affidavits of interested parties. It must be determined by expert bodies like Pay Commission and the Government, who would be the best judges, to evaluate the nature of duty, responsibility and all relevant factors. The same view was reiterated in the case of State of M.P. v. Pramod Bhartiya, reported in (1993) SCC 539, by a three Judge Bench of this Court. In the case of Shyam Babu Verma Vs. Union of India, reported in (1994) 2 SCC 521, a claim for equal pay by a group of pharmacists was rejected saying that the classification made by a body of experts after full 13 study and analysis of the work, should not be disturbed except for strong reasons which indicate that the classification made was unreasonable."
The next limb of submission that alike a Lecturer in Engineering College even the Sports teacher or Coach is indulging in imparting instructions and thus, can be called a teacher, can also not be accepted. What would be the qualification of a teacher in the Engineering College and what job will be allocated to a Sports teacher cannot be made comparable, inasmuch as it is the main curriculum, syllabus and subject being taught in Engineering College by which the qualification of a Sports teacher has been prescribed and the sports being allocated activity and not forming part of the main curriculum and syllabus in the Engineering College anyone associated with a job of a Coach or teacher in Sports cannot himself claim to be a teaching faculty of the Engineering College. Such concept of „equal pay for equal work‟ by use of designation has been clarified by the Apex Court in the case of State Bank of India Vs. Mr. Ganesh Babu, reported in (2002) 4 SCC 556, wherein it was held that:
14
"The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallized and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization.
Differentiation in pay scales of 15 persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court."
Thus, this Court will have no
difficulty in approving the order dated
3.9.2009 passed by the competent authority.
Thus, having given anxious consideration to all aspects of the matter as discussed above, this Court does not find any merit in this application and the same is accordingly dismissed.
(Mihir Kumar Jha,J.) Patna High Court Dated 20th July, 2010 NAFR/ Surendra