State of Haryana
& ANR. Vs. Dharam Singh & Ors.  INSC 239 (6 February 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 753 OF 2009 (Arising out
of S.L.P. (C) No.6485 of 2004 State of Haryana and Anr. ....Appellants Versus
Dharam Singh & Ors. ....Respondents
Dr. ARIJIT PASAYAT,
in this appeal is to the order passed by a Division Bench of the Punjab and
Haryana High Court allowing the writ petition filed by the respondents. The
High Court relied on an earlier decision rendered by it in Civil Writ Petition
No.15157 of 1998.
support of the appeal learned counsel for the appellant submitted that the
directions given by the High Court to consider the case of the respondents for
grant of one increment on account of promotion to the next higher rank has no
legal basis. It is pointed out that the respondents claim was for promotional
increments. The writ petitioners claimed promotional increments on the basis
that they were working as J.B.T. teachers and were promoted to the post of
Headmaster on the basis of seniority-cum-merit.
They have already
received the same higher pay scale of the Headmaster as a personal measure,
prior to being promoted and without performing the dues of higher
responsibility at that stage. Strong reliance was placed on a decision of this
Court in State of Haryana and Anr. v. Partap Singh and Ors. (2006 (10) SCC
ratio in that decision is as follows:
were already getting the functional pay of Masters while working as JBT
teachers. Because of regular promotion order being issued for the post of
Masters, it only amounted to regularization of the pay scale which they were
already drawing i.e. pay scale of Masters. Thus, granting of one more increment
because of regularization 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.
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 on 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 3
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 Master's 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 no question of granting them the initial pay
the stage of timescale next above their substantive pay in respect of the old
post. Judicial fiat cannot create anomalous position against the statute."
counsel for the respondent on the other hand submitted that Pratap Singh's case
(supra) has no relevance and it is factually distinguishable.
factual scenario has been spelt out above.
High Court came to an abrupt conclusion regarding entitlement relying on an
earlier decision without indicating as to how the factual scenario was similar.
the aforesaid background, we deem it fit to remit the matter to the High Court
to consider the applicability and relevance of Pratap Singh's case (supra) to
the facts of the present case and to decide the matter afresh.
request the High Court to dispose of the matter as early as practicable. The
appeal is disposed of accordingly.
(Dr. ARIJIT PASAYAT)