Asha Devi & Ors vs State Of Sikkim & Ors

Jitendra Kumar Maheshwari, CJ

(Civil Extraordinary Jurisdiction)

This Writ Petition under Article 226 of the Constitution of India was filed by the deceased retired employee Mr. A.K. Mishra 0n 3.04.2017, seeking

direction to grant pay scale at par with Mr. S.M. Singh, a Graduate Teacher in the regular establishment, who was drawing the basic pay of Rs.7900/-

as on 22.06.1996 in the pay scale of Rs.7,000-11,500. A direction has also been sought for to grant of pay to the deceased petitioner in the pay scale

of Rs.7500-12000 with effect from 22.01.1997 as he was entitled for advancement grade scale of Headmaster, Secondary School. It is further prayed

that the deceased petitioner shall be given the scale of pay of Rs.9000-13800 with effect from 22.01.2002 after completion of five years service with

effect from 21.01.1997 as per the Appendix-II of Sikkim Government Revised Pay (Amendment) Rules, 1998. The negative reliefs are also prayed,

but it is having no relevance, therefore, it has not been referred. The original petitioner was died on 17.06.2018, therefore, the names of present

petitioners were substituted vide Order dated 27.08.2018.

The facts unfolded to file the present Writ Petition are that deceased petitioner was posted as Science Graduate (Math) Teacher at Hee -

Gyathang High School on contractual basis for a period of three years vide Order dated 15.07.1981, where he joined on 20.07.1981. The said period of

contractual appointment continued without regularizing his service, however, the deceased petitioner and some other similarly situated employees had

filed Writ Petitions those were WP(C) Nos. 27/1994, 30/1994, 04/1995 and 17/1995. All these petitions were commonly decided vide Order dated

13.12.1995 issuing the direction to State to formulate the policy for regularization of service to the adhoc or contractual non-local teachers, Graduate

or Post Graduate and to consider their service for regularization. In the order, it was specified that for the purpose of notional fixation and pension, the

services rendered by the teachers during contractual or on adhoc appointment shall be counted as qualifying service.

The State Government has formulated a regularization policy which was Notified on 14.02.1996. As per the said policy the case of the deceased

petitioner was considered and he was regularized vide Order dated 19.06.1996 (Annexure P-1) in the pay scale of Rs.1520-40-1600/EB-50-2300/EB-

60-2660 (unrevised) with effect from the date he takes over the charge of the post. The deceased petitioner, accordingly, joined the regular services

and continued on the post as Graduate Teacher. He attained the age of superannuation in the year 2017 after getting the Grade Pay as per the Sikkim

Government Services (Advancement Grade) Rules, 1999, for short, “Grade Pay Rulesâ€. It is also the fact that with effect from 01.01.1996 the

scale of pay of Rs.1520-2660 has been revised by the Sikkim Government Services (Revised Pay) Rules, 1998 (for brevity it be called Revised Pay

Rules) in the scale of Pay of Rs.5500-175-9000. It is not in dispute that on the date of regularization i.e. 19.06.1996 the Revised Pay Rules were not in

existence, however, the regularization of the deceased petitioner was ordered in unrevised pay scale. After commencement of Revised Pay Rules, the

State Government has passed the order on 21.05.1999 (Annexure R-5) extending the benefit of revised pay scale and on 29.07.2005 (Annexure R-6)

on completion of ten years continuous service as a Graduate Teacher, extending the Grade Pay.

By filing this petition it is contended by Mr. A. Moulik, learned Senior Counsel that under the Grade Pay Rules, on completion of the period as

specified in the Appendix, subject to clearance by the Departmental Promotion Committee, for short, “DPCâ€, due to not having any adverse entry

in their confidential reports in preceding three years prior to consideration for advance grade, he would be entitled for grant of grade pay as per the

Grade Pay Rules counting the period of contractual appointment from the initial date and fixation of pay on the date of regularization ought to be done

accordingly.

He further contends that as per the Rule 4, Column No.11 of the Education Department (Principals of the Senior Secondary Schools and

Headmasters of the Secondary Schools) Recruitment Rules, 1992, for short, “Recruitment Rules, 1992â€, on completion of regular service of five

years he/she is entitled to get the benefit of Grade Pay Scale of Headmaster, thereafter, in the Grade Pay Scale of the Senior Secondary School

Teacher on completion of period so specified in the Schedule. It is urged, as per the directions of this High Court his services were regularized on

19.06.1996. It is submitted that the period of service rendered by deceased petitioner on contract basis has not counted for the purpose of promotion.

On account of not granting promotion on completion of five years, from the initial date of appointment and even on completion of ten years on the date

of regularization, benefit of Grade Pay was not allowed as per Grade Pay Rules. Therefore, it is contended that counting his service rendered on

contract basis prior to the regularization of deceased petitioner fixation ought to be made in the scale as specified under the Grade Pay Rules and the

subsequent fixation as prayed in the Writ Petition may also be directed.

Per contra, Dr. Doma T. Bhutia, learned Additional Advocate General representing the State contends that the regularization of the deceased

petitioner was directed vide order dated 19.06.1996 with effect from the date he takes over the charge. It is contended as per the Recruitment Rules,

1992, on completion of 5 years of regular service he may be promoted as Headmaster. In case, he could not be promoted, then as per the Grade Pay

Rules on completion of 10 years of service, subject to clearance by the DPC and not having any adverse entry in the confidential reports in the

preceding three years deceased petitioner may be entitled for the corresponding scale as specified in the Grade Pay Rules. Prayer made by the

petitioners in this petition seeking benefit of the Grade Pay Rules counting his service of contractual appointment i.e. from the initial date of

appointment is baseless and contrary to the Rules.

Learned Additional Advocate General has further contended that looking to the direction of this Court, the service rendered by the deceased

petitioner on contract basis prior to regularization cannot be counted for promotion. In fact as directed by this Court, the said period rendered on

contract basis can be counted for the purpose of notional fixation of pay and pension only and not for any other purpose. It is further contended that in

terms of the Recruitment Rules, 1992 and the Grade Pay Rules his fixation has already been made as claimed in this petition. She further said that the

benefit as claimed at par with Mr. S.M. Singh cannot be directed because his appointment since beginning was on regular basis, therefore, there is no

discrimination and the scale which has been allowed to him cannot be granted to the deceased petitioner. At last it is contended that this petition has

been filed with inordinate delay, therefore, the reliefs as prayed cannot be directed, in particular, when the petition is filed on attaining the age of

superannuation by the deceased employee.

After having heard learned counsel appearing on behalf of both the parties in the context of the unfolded facts of the present case and from the

previous order of this Court in the WP Nos. 27/1994, 30/1994, 04/1995 and 17/1995 dated 13.12.1995, the relevant paragraph is hereby quoted which

reads as thus:

“28. Keeping everything in view and all the matters considered in the preceding paragraphs we think that justice would be met if steps in the

following manner are taken by the Government:

A scheme for regularisation of service, adhoc or contractual, of the non-local teachers, graduate or post-graduate, is to be formulated by the

Government, following the guidelines as noted hereafter.

(a) An independent Committee or Service Commission is to be set up to find out candidates whose service might be regularised.

(b) Government will prepare a list of candidates who would be brought to the consideration zone of the Committee/Commission. The list should include

all the petitioners before us.

(c) The Committee or Commission would prepare a list of eligible candidates in order of merit-cum-seniority.

(d) Candidate once interviewed or tested at the point of initial appointment or at any subsequent time, should not be asked for further interview or test.

(e) The list of eligible candidates would be prepared on the basis of service records including adverse remarks, if any, of each of the candidates.

All further appointments in existing and future vacancies are to be made on regular basis from the list of eligible candidates prepared by the

Committee, one after the other.

While giving such appointments, restriction on entry-age should be waived.

Total period of service on adhoc or contractual basis, ignoring the period of break if any, is to be reckoned as qualifying service towards notional

fixation of initial pay in the grade and also for the purpose of pension.

There will be no appointment on regular, adhoc or contractual basis either from locals or from non-locals till the list of eligible candidates, as

prepared, is exhausted.â€​

On perusal, it is clear that the Government was directed to formulate a scheme for regularization of service of adhoc or contractual non-local

teachers, Graduate or Post Graduate, as the case may be. Thereafter by setting up of an independent Committee the services were to be regularized.

It was clarified that who may be included in the zone of consideration by the Committee, the list be prepared to that effect. Thereafter, the Committee

on exercising their wisdom shall prepare the list of eligible candidates on interviewing them, if they were not interviewed earlier or otherwise they be

tested as per the wisdom of the Committee. The future appointments on the future vacancies must be restrained until all the contract/adhoc employees

have been regularized granting relaxation of age. It is specifically said that the period of service rendered on adhoc/contractual basis ignoring the

period of break, if any, is to be reckoned as qualifying service towards the “notional fixation of initial pay†and also for the purpose of pension.

Therefore, it is clear that the period of contract service rendered by the deceased petitioner can be counted only for the purpose of fixation of notional

pay on his/her regularization or it may be counted for the purpose of fixation of pension. Except for the said two purposes the period rendered by the

deceased petitioner on contract service cannot be counted in particular for promotion or any other purpose.

As stated hereinabove it is not in dispute that the Revision of Pay Rules, 1998 is made applicable with effect from 01.01.1996. Those Rules were

notified from 27.01.1998 prior to the said date, regularization of the deceased petitioner was done on 19.06.1996, vide order Annexure P-1. Therefore,

in the said order, regularization was ordered in the unrevised pay scale of Rs.1520-2660 because the revisions of pay rules were came into force after

regularization. After commencement of the Revision of Pay Rules, 1998 the Government by its own, issued the order of regularization of petitioner in

a revised scale of pay extending all benefits as specified. Therefore, it is clear that service of the deceased petitioner was regularized appointing him

with effect from the date on which the deceased petitioner takes over the charge of office, as apparent vide order dated 19.06.1996.

As per the spirit of the Grade Pay Rules, in particular Rule 6, it is clear that the Government servant upto the level of Deputy Secretary and

equivalent shall be granted pay scale of the Advancement Grade on completion of ten years of continuous service in a post/grade if they do not get

any promotion during the period as specified in the Appendix subject to clearance by the DPC and on not having any adverse confidential report in the

preceding three years. Thus, it is clear if a person could not get promotion upto a period of ten years from the date of regular service as specified the

benefit of Grade Pay Rule is applicable to them.

It is not in dispute that the appointment of the deceased petitioner was on the post of Graduate Teacher. The promotion of Graduate Teacher to a

higher post is governed by the Recruitment Rules of 1992. As per Rule 4, it is clear that the method and qualification required for recruitment and/or

eligibility conditions for promotion to the post of Principal and Headmaster shall be such, as specified in column no.5 to 11 of the Schedule attached.

The Schedule has been appended thereby it is clear, as per column no.11, the Graduate Teacher with B.Ed. with five years regular service may be

eligible to consider for promotion to the post of Headmaster. Thus, a Graduate Teacher completed five years regular service then only he may be

entitled for grant of promotion to the post of Headmaster and thereafter, further on the post of Principal of Senior Secondary School as per the

eligibility prescribed in column no.11 of the Rule. On conjoint reading of Rule 6 of the Grade Pay Rules and Rule 4 of the Recruitment Rules of 1992

with column no.11 of schedule, it is clear that promotion of a Graduate Teacher to the Headmaster can only be possible after five years of regular

service. In case he could not get promotion upto ten years from the date of regular service, as per Rule 6 of Grade Pay Rules he may get Grade Pay

Scale. Thus, benefit of Grade Pay Scale can only be granted after ten years of regular service. Admittedly the deceased petitioner was regularized on

19.06.1996 and the period of five years would be counted from the date of regularization and not from the initial date of contractual appointment for

the purpose of grant of promotion. If the deceased petitioner could not get promotion upto the period of ten years, from the date of regular service, the

benefit of Grade Pay Scale can be granted to him but the period of ten years cannot be counted from the date of contract appointment.

The contention as advanced by Senior Counsel that the fixation ought to be made counting the service of contract appointment and on completion

of ten years of service under Grade Pay Rules is fallacious which cannot be accepted in view of discussion made hereinabove. Therefore, it is clear

that in terms of the Promotion Rules, 1992 and the Grade Pay Rules on completion of five years of regular service if the deceased petitioner could not

get promotion, then after ten years of regular service subject to clearance by the DPC and not having the adverse entries in the preceding three years

in the confidential report he/she may be entitled to get the benefit of the Grade Pay Scale. In that view of the matter, the argument advanced by the

petitioners seeking benefit of the Grade Pay Scale counting the period of contract appointment prior to regularization is impermissible, therefore, the

relief prayed in this Writ Petition cannot be directed in view of the foregoing discussion.

It is to be observed here that the petitioners are unable to point out that the Grade Pay Scale granted to him subsequently by the orders of the

Government is defective or not from due date. Therefore, the said issue is not required to be discussed. As the issue involved in the present case has

already been dealt with on merit, therefore, the other plea regarding delay and laches and maintainability is not relevant for adjudication in this case.

In view of the foregoing discussion the inescapable conclusion can be arrived is that the petitioners are not entitled to the reliefs as prayed in this

petition, accordingly, it is dismissed. In the facts and circumstances, parties to bear their own cost.