Arvind Kumar vs The Directorate of Education and Others

Valmiki J Mehta, J.—The Petitioner, by means of this writ petition, seeks the higher pay-scale as has been granted by the Respondent No. 2 school to the Respondent No. 3, and the concerned relief clause in the writ petition is as under:

(b) Pass an appropriate writ, order or direction in the nature of mandamus, directing the Respondent No. 2 to grant to the Petitioner the scale of pay, corresponding to Rs. 2200-4250 which is being drawn by his junior, Respondent No. 3 in accordance with Govt. instructions vide letter No. F-5-165/86-UT dated 8.01.90 and FR 22C of the CCS Rules.

The Petitioner states that he was appointed as a TGT (physics) on 28.6.1982 with the Respondent No. 2 school. It is further stated that he was promoted to PGT on 1.6.1987. The Petitioner contends that the Respondent No. 3 who was his junior was promoted as a Deputy Head with pay-scale of Rs. 2000-3800 in 1993 and subsequently to Estate Administrator and proctor in May, 1995. The Petitioner therefore states that he is entitled to the same grade as that of the Respondent No. 3 who was his junior.

The Respondent No. 2, in reply, has stated that the Respondent No. 3 was appointed as TGT (Physical Education) on 14.8.1972 around 10 years before the Petitioner was appointed as TGT on 28.6.1982. It is further stated that the Respondent No. 3 received the scale of Rs. 1700-3600 w.e.f. 1.1.1986 and the Petitioner got the same scale as a PGT only on 1.6.1987. It is further the stand of the Respondent No. 2 that Respondent No. 3 happened to be in the Department of Physical Education where vacancy arose of a Deputy Head in 1993 on the promotion of Mrs. Kathuria as the head, and since this was a job meant for Physical Education Department, the Respondent No. 3 working in the Physical Education Department was promoted as Deputy Head. Reliance has also been placed upon the Explanation to Rule 109 of the Delhi School Education Rules, 1973 which provides that grade means a post or a group of posts created for the work of same nature and the nature of work of the Petitioner and Respondent No. 3 were different and hence the Respondent No. 2 was fully justified in categorizing the Petitioner and Respondent No. 3 differently by fixing grades as per the different natures of their works/disciplines.

The main issue to be decided in the present case is the argument of the Petitioner that, can there be merger of two cadres for the purpose of seniority so that a junior in a different discipline would necessarily have to have a pay-scale lower than a senior in another discipline/grade. Putting it differently, can a higher pay-scale of a promotee in a different department entitle a person in another department to claim the higher pay-scale although the promotee has been given due promotion to the higher post.

A reading of the facts of the case show the following undisputed position:

(i) The Petitioner achieved the scale of pay of Rs. 1700-3600 on 1.6.1987 whereas the Respondent No. 3 reached that scale earlier on 1.1.1986.

(ii) The disciplines/cadres of the Petitioner and Respondent No. 3 are different in that whereas the Petitioner is working as a physics teacher, the Respondent No. 3 was in the Physical Education Department.

(iii) Though, the Respondent No. 3 reached the senior scale of Rs. 1700-3600 more than one year prior to the Petitioner, however, the Petitioner on account of vacancy in the post of a PGT in the Physics Department got promotion prior to the Respondent No. 3 and the same fortuitous circumstance caused promotion of the Respondent No. 3 to the next post of Deputy Head on account of Mrs. Kathuria being promoted to the Head of the Department of Physical Education in 1993.

The contention of the Petitioner is that he is senior to the Respondent No. 3 is misconceived because the Petitioner reached the grade/pay-scale of Rs. 1700-3600 only on 1.6.1987 when the Respondent No. 3 had already reached this pay-scale much earlier on 1.1.1986. In fact, the Respondent No. 3 was appointed as a TGT about 10 years prior to the appointment of the Petitioner as a TGT. If the Petitioner had the fortuitous circumstance of there being a vacancy in the post of PGT in the Department of Physics and therefore he got promotion to PGT before the Respondent No. 3, similarly, the Respondent No. 3 has had the benefit of fortuitous circumstance of vacancy being available in the physical education discipline/cadre as a result of which he was promoted. There cannot be joinder of separate cadres/disciplines for the purpose of pay-scale as is being canvassed by the Petitioner. Rule 109 of the Delhi School Education Rules, 1973 permits separate gradation as per the nature of the work, and surely, physics and physical education are separate disciplines. The lack of acceptable rationale in the argument of the Petitioner will be demonstrated by the fact that if the contention of the Petitioner is accepted then the effect will be that if one person is promoted in one department and thereby he gets a higher scale than all other persons who are working in an equivalent post to the post from where the promotee was promoted will be entitled to pay scale of the promotional post without putting in work of that post or because of promotion from the post of a PGT in one department will automatically have to mean grant of promotion to all PG Ts merely because they became PG Ts prior to the promoted person in another department. Argument of the Petitioner if accepted will lead to unimaginable financial burden on the employer and that too payable to a person who is not putting in work in the higher post.

The counsel for the Petitioner argued that the Respondent No. 2 is not maintaining an appropriate seniority list for all similar pay scales. This contention in the facts of the present case argued has no basis not only because, Respondent No. 3 reached the scale of 1700-3600 prior to the Petitioner and therefore was senior in that scale prior to the Petitioner, but also, both the Petitioner and the Respondent No. 3 who are in different disciplines/nature of work, as per the vacancy in their disciplines at higher post, got their promotions at those relevant points of time.

I may only add that further promotions to the post of Vice Principal and ahead are on the basis of seniority-cum-merit. There is no legal right of the Petitioner which is therefore infringed for the Petitioner to claim the same pay-scale/grade as that of the Respondent No. 3.

In view of the above, the writ petition being devoid of merits is dismissed, leaving the parties to bear their own costs.