Chaman
Lal & Ors Vs. State of Haryana [1987] INSC 106 (13 April 1987)
Reddy,
O. Chinnappa (J) Reddy, O. Chinnappa (J) Dutt, M.M. (J) Citation: 1987 Air 1621
1987 Scr (2) 923 1987 Scc (3) 113 Jt 1987 (2) 135 1987 Scale (1)761 Citator
Info : Rf 1988 Sc 892 (13)
ACT:
Haryana
Educational Service--Teacher--Pay Scale linked to qualifications--Basic Trained
Teacher acquiring B.Ed/B.T. qualification subsequent to joining
service--Entitlement to higher pay scale-Admissibility of.
HEADNOTE:
In
the Haryana Educational Service, there were two categories of teachers
described as Masters and Basic Trained Teachers. 25% of the posts of Masters
were reserved for promotion from the posts of Basic Trained teachers.
Masters
could be promoted to higher posts. By an order dated July 23, 1957 there was a
revision of the scales of pay.
Teachers
were placed according to their qualifications in two categories, Catetogy A
consisting of B.A, B.Com, B.Sc. (Agriculure) and B.T., and Category 'B'
consisting of four groups of whom Group I was Matric with basic training
(including J.B.T.). The scale of pay was linked to the qualification and for
category 'A' it was Rs.110-250 with a higher start for M.A. and M.Sc. and for
Category 'B' it was Lower Rs.60-120, Middle Rs.120-175 and Upper Rs.140-200.
While
Kripal Singh Bhatia's case and other petitions were pending, the Government of
Haryana issued an order further revising the scales of pay of teachers working
in Government schools in 1968 consequent on the acceptance of the
recommendations of the Kothari Commission with effect from December 1, 1967.
There was, however, no departure from the principle of the 1957 order, that
trained graduates would be entitled to the higher scales of pay.
On
September 5, 1979, the Government issued an order granting Masters grade to
unadjusted J.B.T. teachers who had passed B.A., B.Ed. subject to certain
conditions. This order was challenged before the High Court by 'trained
graduates' i.e. those who possessed the B.Ed. or B.T. degree in addition to
B.A. degree. They did not possess this degree initially but acquired it
subsequent to their joining service which was between 1953 and 1973. The High
Court held that those teachers who had acquired the B.T. or B.Ed. qualification
subsequent to December 1, 1967 (the date on which the 1968 order came into
force) 924 and before September 5, 1979 would be entitled to the Higher grade
but with effect from September 5, 1979 only and that those who acquired the
qualification subsequent to September 5, 1979 would not be entitled to the
higher grade. It further held that the 1968 order did away with the principle
of the 1957 order, that teachers acquiring B.T. or B.Ed. qualification should
get the higher grade, and that a concession was shown in 1979 enabling the
teachers who acquired the B.T. or B.Ed. qualification between 1968 and 1969 to
get the higher scale from 1979.
Allowing
the appeal, this Court,
HELD:
1. From 1957 to 1980, it was always accepted that teachers who acquired the
B.T. or B.Ed. qualification would be entitled to the higher scale of pay as
soon as they acquired the qualification irrespective of the dates when they
were adjusted against the posts of Masters. The adjust- ment against the posts
of Masters was relevant for the purpose of seniority in the post of Masters and
for the further purpose of promotion from that post. So far as the scale of pay
was concerned irrespective of adjustment against the post of Masters, a teacher
was always held entitled to the higher scale of pay from the date of the
acquisition of the B.T. or B.Ed. qualification. [930E-G]
2.
It is plain that the High Court has ignored all the events that took place
between 1957 and 1980. The principle that pay should be linked to qualification
was accepted by the Punjab Government in 1957 and when Kirpal Singh Bhatia's
case was argued in the High Court and this Court there was not the slightest
whisper that the principle had been de- parted from in the 1968 order. In fact
the 1968 order expressly stated that the Government had accepted the Kothari
Commission's report in regard to the scales of pay and the main feature of the
report with regard to pay was the linking of pay to qualification. The High
Court was not justified in departing from rule which had been well established
and consistently acted upon, it was not open to the State Government to act
upon the principle in some cases and depart from it in other cases. [931E-G;
932B]
3.
The 1968 order must be read in the light of the 1957 order and the report of
the Kothari Commission which was accepted. If so read there could be no doubt
that the Government never intended to retract from the principle that teachers
acquiring the B.T. or B.Ed. qualification would be entitled to the higher grade
with effect from the respective dates of their acquiring the qualification. The
1979 order was indeed superfluous. There was no need for any special sanction
for the grant of 925 Master's grade to unadjusted J.B.T. teachers, who had
passed B.A., B.Ed. That was already the position which obtained both as a
result of 1957 and 1968 orders and the several judgments of the Court. [931G-H;
932A-B] (The respondents directed to give the higher grade admissible to
Masters to all the teachers who have acquired the B.T/B.Ed. qualification with
effect from the respective dates of their acquiring the qualification).
State
of Punjab and another v. Kirpal Singh Bhatia & Ors., [1976] 1 SCR 529,
referred to.
CIVIL
APPELLATE JURISDICTION: Civil Appeal No. 1371 of 1980 ETC. & ETC.
From
the Judgment and Order dated 29.8.1978 of the Punjab and Haryana High Court in
C.W.P. No. 1220/1978.
Pankaj
Kalra for the Petitioners.
V.C.
Mahajan, C.V. Subba Rao, I.S. Goel, and N.S. Das Bahl for the respondents.
The
Judgment of the Court was delivered by CHINNAPPA REDDY, J. The appellants in
the Civil Appeal and the petitioners in the Writ Petitions are all 'trained
Graduates', that is to say, all of them possess the B.Ed. or B.T. degree in
addition to the B.A. degree. They are teachers in Government schools in the
State of Haryana. They did not possess the B.Ed. or B.T. degree when they
joined service initially. They acquired the B.Ed. or B.T. degree qualification
subsequent to their joining service which was between the years 1953 and 1973.
Some of them acquired the B.Ed. or B.T. degree qualification before September
5, 1979 and in some cases after September, 5, 1979. The importance of the date
September 5, 1979 will become evident as we proceed to state the facts. It
appears that in the Haryana Educational Service, there were two categories of
teachers described as Masters and Basic Trained teachers. 25% of the posts of
Masters were reserved for promotion from the posts of Basic Trained teachers.
Masters could be promoted to higher posts. There appears to have been some dissatisfaction
regarding the scales of pay for teachers and so in 1957, there was a revision
of the scales of pay by an order dated July 23, 1957. All teachers, according
to their qualifications, 926 were placed in two broad categories, category 'A'
consisting of B.A/ B.SC./B.Com/B.Sc (Agriculture) and B.T., and Category 'B'
consisting of 4 groups of whom Group 1 was "Matrics with basic training
(including JBT)". The Government order mentioned the scales of pay as:
"Category
'A': Rs.110-8-190/10-250 with a higher start for M.A. & M.Sc. As at
present.
The
existence percentage of posts fixed by Government for scales of
Rs.110-8-190/10-250 and Rs.250-300 should remain unchanged at 35% and 15%
respectively.
Category
'B': Lower Rs.60-4-80/5- 120 Middle Rs.120-5-175. Upper Rs.140-10- 200.
With
a view to providing incentives, it has been decided that posts falling in these
groups should be in the following as:
Group
I: Lower Scale 85% Middle Scale 15% 15% of teachers in this group should
straight- away be promoted to the middle scale by a selection based on
seniority and merits, while the rest should be given the lower scale."
What is important to be noticed here is that the scale of pay was linked to the
qualification. A question was raised whether teachers who started as Basic
Trained teachers and later acquired the B.Ed. or B.T. qualification, but who
could not be adjusted against posts of Masters would be entitled to the grade
of Rs.110-250? Answering a query, the Secretary of the Department of Education
replied, "Your presumption that teachers holding B.A., B.T./B.A., B.Ed.
qualifications
would henceforth be placed in Category 'A' is confirmed". The question also
came to be considered judicially, first by the High Court of Punjab &
Haryana and later by the Supreme Court in State of Punjab v. Kirpal Singh
Bhatia, [1976] 1 SCR 529. The Supreme Court, affirming the judgment of the High
Court of Punjab & Haryana, held as follows:
"The
High Court rightly referred to the letter of the Secretary of the Department dated
24th September, 1957 that-teachers holding B.A., B.T./B.A., B.Ed. qualification
927 would henceforth be placed in Category 'A'.
The
High Court tightly came to the conclusion that the scale of pay of Rs.110-250
Would be effective either from the date when the teachers would pass the
examination of Bachelor of Teaching or its equivalent or 1st May, 1957
whichever is latter." While the writ petitions were pending in the High
Court, the Government of Haryana issued an order directing further revision of the
scales of pay of teachers working in Government schools in 1960. It was
expressly stated in the order that the scales of pay were being revised
consequent on the acceptance of the recommendations of the "Kothati Commission".
One of the questions which the Kothari Commission had considered in great
detail was the scales of pay of teachers. The Commission had strongly expressed
the view that the scales of pay should be linked to educational qualifications.
In paragraph 3.15 of their report, the Commission said:
"3.15
Our first proposal is that the existing multiplicity of scales of pay should be
reduced and that there should be three main scales of pay for school teachers:
(1)
A scale of pay for teachers who have completed the secondary course and are trained
and who would form the vast bulk of teachers at the primary stage;
(2)
A scale of pay for trained graduates who would form a small proportion of
teachers at the primary stage but the vast bulk of teachers at the lower
secondary stage;
(3)
A scale of pay for teachers with post-graduate qualifications who would form a
small proportion of teachers at the lower secondary stage, but the bulk of
teachers at the higher secondary stage.
Incentives
to teachers of special subjects or to teachers with additional qualifications
can be given in the form of advance increments or special allowance. The scales
of pay of special teachers (i.e. for drawing, craft, physical education, etc.)
can also be related to these three basic scales in some suitable manner. The scales
of pay for librarians should also be related to those for teachers in a
suitable manner." 928 Again in paragraph 3.16(3), they said:
"Our
attention has been drawn to an anomaly which must be removed as early as
possible. Several States restrict, on financial grounds, the number of posts
which carry the scale of trained teachers who have completed the secondary
school course. The remaining posts are usually assigned to lower scales of pay
sanctioned for teachers with lower qualifications. Not infrequently, per- sons
with lower qualifications are recruited to these posts even when qualified and
trained teachers are available. This is bad enough;
but
what is worse, even trained and qualified teachers who are recruited against
the posts are given, not the salaries of qualified and trained teachers to
which they are entitled but the lower salaries meant for these posts.
As
the completion of secondary school course and two years of professional trained
are accepted as the minimum qualification for a primary teacher, this practice
should be abandoned as early as possible and the principle adopted that every
trained teacher who has completed the secondary school course received the
scale of pay sanctioned for such teachers.
This
will remove an injustice now being done to a large number of teachers in
service, and create an incentive for unqualified or un- trained teachers to
become qualified and trained." In Paragraph 3.17(3), they said:
"The
scales of pay of trained graduate teachers should have a minimum of Rs.220
rising to Rs.400 in a period of about 20 years. There should be a selection
grade which would rise to Rs.500 and be available to about 15 per cent of the
cadre." We mentioned earlier that even in 1957, the Government of Punjab
(which at that time included Haryana) had already accepted the principle of
linking pay to qualification as evident from their order dated July 23, 1957.
Accepting the Kothari Commission's recommendations, they revised the scales of
pay with effect from December 1, 1967 in the following manner:
929
"Sr. Category of teachers Revised Grade No.
ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ
1.
J.B.T./J.S.T/J.A.V.C-& V i) Rs.125-5-150/5-250 teachers drawing masters.
(for 85% of the cadre) Tailoring Mistress Art & ii) Rs.250-10(for 15% of
Craft teachers, Domestic the cadre).
Science
Mustresses & Shashtries.
N.B.
The untrained teachers with High Secondary/ Matriculation qualifications will
draw the starting of Rs.100 per mensem and they will be integrated in the regular
pay of scales Only after they attain necessary provisional qualification.
i)
(Rs.220-8-300/10-400 (for 85% of the cadre)
2.
Masters/Mistresses ii) Rs.400-20-500 (Trained Graduates) (for 15% of the cadre)
N.B. i) The 1st and 2nd class Graduates will be entitled to draw one advance
increment in addition.
(ii)
The untrained Graduates will be allowed the starting salary of Rs.200 per
mensem and will be entitled for the regular scales of pay only after attaining
the prescribed professional training." Though the 1968 order had come into
force with effect from December 1, 1967, it was not suggested either before the
High Court or before the Supreme Court when Kirpal Singh Bhatia's case was
decided that the 1968 order had made any departure from the principle of the
1957 order that trained Graduates would be entitled to the higher scales of
pay. The question however was raised in Civil Writ No. 2505 of 1972 in the High
Court of Punjab and Haryana and it was decided in that case that teachers who
did not originally possess the B.T./B.Ed. qualification but who acquired such
qualification on various dates between 1960 and 1970 were entitled to the
higher scale of pay of Rs.220-300/ 400 with effect from the respective dates of
their acquiring the qualification irrespective of the dates on which they were
adjusted against the posts of Masters. After the judgment of the High Court was
pronounced consequential orders were issued by the Government on November 20,
1973. The question arose again in Civil Writ No. 1991 of 930 1976 and other
cases when it was disposed of by a Division Bench of the High Court of Punjab
and Haryana on November 1980 with the following order:
"The
learned counsel for the parties are agreed that the matter in this and writ
petitions Nos. 1991 of 1976, 3829 of 1975, 4449 of 1974, 5227 of 1975, 5539 of
1975, 2247 of 1973, 7726 of 1976 and 7813 is covered by the decision of the
Supreme Court reported as State of Punjab and Others v. Kirpal Singh Bhatia and
Others, [1975] 2 Service Law Re- porter 621 and these petitioners have to be
allowed to in terms of the aforesaid judgment of the Supreme Court.
The
learned Advocate General, Haryana states that the benefit which flowed because
of the Judgment of the Supreme Court in Kirpal Singh Bhatia's case (supra) has
been given to the petitioners in all these petitions. Mr. J.L. Gupta learned
counsel for the petitioners, shows ignorance about this fact.
Whatever
be the circumstances, the petitioners are allowed in view of the judgment of
the Supreme Court in Kirpal Singh Bhatia's case (supra) with no order as to
costs." It is thus seen that from 1957 to 1980 whenever the question
arose, it was always accepted that teachers who acquired the B.T. or B.Ed.
qualification would be entitled to the higher scale of pay as soon as they
acquired the qualification irrespective of the dates when they were adjusted
against the posts of Masters. The adjustment against the posts of Masters was
relevant for the purpose of seniority in the posts of Masters and for the further
purpose of promotion from that post. So far as the scale of pay was concerned,
irrespective of adjustment against the post of Master, a teacher was always
held to be entitled to the higher scale of pay from the date of the acquisition
of the B.T. or B.
Ed.
qualification.
On
September 5, 1979, the Government of Haryana issued an order in the following
words:
"Sanction
of the Governor of Haryana is hereby accorded w.e.f. 5.9.1979 of the grant of
Masters grade to unadjusted J.B.T. teachers who have passed B.A.,B.Ed., subject
to the following conditions:- 931 (i) That the expenditure involved would be
met from the savings of the current year revised sanctioned estimates.
(ii)
That these teachers will not be allowed any seniority in the cadre of masters.
(iii)
That it will not form a precedent for future.
(iv)
That the award of Master's grade to the concerned teachers would be personal to
them." This order of the Government is now sought to be interpreted and it
has been so interpreted by the High Court of Punjab and Haryana in the judgment
under appeal that those teachers who had acquired the B.T. or B.Ed.
qualification subsequent to December 1, 1967 (the date on which the 1968 order
came into force) and before September 5, 1979 would be entitled to the higher
grade but with effect from September 5, 1979 only and that those who acquired
the qualification subsequent to September 5, 1979 would not be entitled to the
higher grade. According to the judgment of the High Court under Appeal, the
1968 order did away with the principle of the 1957 order that teachers acquiring
B.T. or B.Ed. qualification should get the higher grade and that a concession
was shown in 1979 enabling the teachers who acquired the B.T. or B.Ed.
qualification between 1968 and 1979 to get the higher scale from 1979. In our
opinion this is plainly to ignore all the events that took place between 1957
and 1980. The principle that pay should be linked to qualification was accepted
by the Punjab Government in 1957 and when Kirpal Singh Bhatia's case was argued
in the High Court and in the Supreme Court there was not the slightest whisper
that the principle had been departed from in the 1968 order.
In
fact the 1968 order expressly stated that the Government had accepted the
Kothari Commission's report in regard to scale of pay was the linking of pay to
qualification. That was apparently the reason why no such argument was advanced
in Kirpal Singh Bhatia's case. Even subsequently when sever- al writ petitions
were disposed of by the High Court of Punjab and Haryana and when the
Government issued consequential orders, it was never suggested that the 1968
order was a retraction from the principle of qualification linked pay.
The
1968 order must be read in the light of the 1957 order and the report of the
Kethari Commission which was accepted.
If
so read there can be no doubt that the Government never intended to retract
from the principle that teachers acquiring the B.T. or B.Ed. would be entitled
to the higher grade with effect from the respective dates of their acquiring
932 that qualification. The 1979 order was indeed superfluous.
There
was no need for any special sanction for the grant of Master's grade to
unadjusted JBT teachers who had passed B.A., B.Ed. That was already the
position which obtained both as a result of the 1957 and 1958 orders and the
several judgments of the Court. We do not think that the Punjab and Haryana
High Court was justified in departing from the rule in the judgment under
appeal. The rule had been well established and consistently acted upon. Nor was
it open to the Government to act upon the principle in some cases and depart
from it in other cases. In the result we allow the appeal and the Writ
Petitions and direct the respondents to give the higher grade admissible to
Masters to all the teachers who have acquired the B.T./B.Ed. qualification with
effect from the respective dates of their acquiring the qualification. The
appellants and the petitioners are entitled to their costs.
N.P.V.
Appeal allowed.
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