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Judgment
Ajay Kumar Mittal, CJ
1) This writ appeal has been filed impugning the order dated 08.05.2019 passed by the learned Single Judge dismissing the writ petition filed by the petitioner/appellant (hereinafter, referred to as appellant).
2) Briefly, the facts may be noticed. The appellant filed a writ petition seeking mandamus commanding the respondents to grant him the pay scale of Rs. 14,100 - 27,510 as admissible under the 4th Pay Commission to the post of Graduate scale.
3) According to the appellant, being a graduate with Hindi as one of the major subject, he was appointed as a Graduate Hindi Teacher by the District Selection Committee vide letter dated 02.03.1993 on the pay scale of Rs. 1300 - 2205 per month. Vide order dated 28.04.1993 on the recommendation of the District Selection Committee, East Khasi Hills District, Shillong, the appellant was temporarily appointed as Assistant Teacher, Hindi and posted at Jirang Government High School in the pay scale of Rs. 1300 - 35 - 1470 - EB - 40 - 1755 - 45 - 2205 per month plus usual allowances as admissible under the rules. The appellant was placed in the revised pay scale of Rs. 4250 - 7170 on implementation of the 3rd Pay Commission w.e.f. the year 1996 and in the pay scale of Rs. 11,300 - 22,000 with the implementation of the 4th Pay Commission w.e.f. the year 2010. The appellant claimed the pay scale of Rs. 14,100 - 27,510 on the basis of the qualification of being a graduate with Hindi as one of the major subject which he had passed in the year 1984.
4) The claim of the petitioner was controverted by respondents No. 2 and 4 in their affidavit-in-opposition by averring that the appellant admittedly was appointed as an Assistant Teacher, Hindi against the post of under-Graduate scale. For appointment to the said post, the recommending authority was District Selection Committee and the appointing authority was the District School Education Officer. Further, an averment has been made that as per the 1st Pay Commission, the pay scale for Assistant Teacher was Rs. 425 - 700 which was revised to Rs. 1300 - 2205 by the 2nd Pay Commission. The 3rd Pay Commission had prescribed two scales, one for the under-Graduate candidates and another for graduate Assistant Teacher. The appellant being graduate but having been appointed on under-Graduate scale was placed in the pay scale of Rs. 4,250 - 7,170 as per the 3rd Pay Commission and the revised pay scale of under-Graduate scale by the 4th Pay Commission for the teacher being graduate i.e., Graduate Assistant Teacher which was Rs. 11,300 - 22,000.
5) Further averment in the affidavit-in-opposition made was that the post of Assistant Teacher, Hindi in the Graduate scale, the recommending authority was Meghalaya Public Service Commission (MPSC) and the appointing authority was Director of School Education and Literacy (DSEL). The different pay scales i.e., as per 2nd Pay Commission, the pay scale for Assistant Teacher was Rs. 1700 - 3070 then, as per 3rd Pay Commission, graduate with B.Ed. and graduate without B.Ed. were given two different pay scales whereas, as per 4th Pay Commission for the post of Graduate scale, revised pay scale is Rs. 14,100 - 27,510.
6) We have heard learned counsel for the parties.
7) Assailing the judgment of the learned Single Judge, learned counsel for the appellant inter alia relied upon two letters, namely, dated 08.10.2014 (Annexure - 20) and 19.10.2012 (Annexure - 22) to urge that the Director of School Education and Literacy, Meghalaya had accorded approval for the grant of Graduate scale of pay of Rs. 14,100 - 350 - 16,550 - EB - 160 - 20690 - 620 - 27510 per month to the appellant and therefore, denial of Graduate scale of pay to the appellant is legally untenable. Elaborating his submissions, it was next contended that in paragraph 4 of the writ petition, it was asserted by the appellant that "the copy of the advertisement for the selection of the Graduate Teachers, Hindi got misplaced and this Hon'ble Court may be pleased to direct the State respondents to produce the same". It was claimed that the advertisement would have clarified the entire factual matrix and the benefit could not be denied to the appellant of the Graduate scale. The prayer in the writ petition was also pressed on the doctrine of equality as there could not be any discrimination in case of similarly situated employees.
8) Controverting the submission of the appellant, the learned counsel for the respondents besides supporting the judgment of the learned Single Judge, argued that the appellant was appointed on under-Graduate scale as a Hindi Teacher by the District Selection Committee vide letter dated 02.03.1993 on the pay scale of Rs. 1300 - 2205 per month and was temporarily appointed as Assistant Teacher, Hindi and posted at Jirang Government High School in the pay scale of Rs. 1300 - 35 - 1420 - EB - 40 - 1755 - 45 - 2205 per month plus usual allowances vide order dated 28.04.1993. The salary which was paid to the appellant on revision by 3rd and 4th Pay Commission was as being paid to teacher appointed on under-Graduate scale. According to the learned counsel, the letters dated 19.10.2012 (Annexure - 22) and 08.10.2014 (Annexure - 20) were never acted upon by the respondents as it was not validly issued in accordance with law as the appellant was never recommended by the MPSC and appointed by DSEL in the year 1993. Next, it was submitted that the appointment of the appellant in 1993 was on under-Graduate scale and therefore, the advertisement had no relevancy in that situation. Further, after more than two and a half decades no right can be claimed on the basis of the advertisement especially when the appellant had accepted the appointment in 1993 on under-Graduate scale. To controvert the submissions of the learned counsel for the appellant, reliance was placed on para 15 of the judgment in (1998) 1 SCC 422: State of U.P. and Others v. Ministerial Karamchari Sangh wherein, it was held that it is also a settled proposition that the evaluation of such jobs for the purpose of pay scales must be left to expert body and unless there are any mala fides, its evaluation should be accepted. Still further, learned counsel had sought to draw the support from (2003) 5 SCC 437: Union of India and Another v. International Trading Co. and Another wherein, the claim for parity was held to be not available to the petitioner therein, holding that no equality can be claimed on the touchstone of negative equality. Para 13 was relied upon, which reads thus,
"13. What remains now to be considered, is the effect of permission granted to the thirty two vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as the thirty two vessels are concerned, but it cannot come to the aid of the respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India (in short "the Constitution") cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs on a par. Even if hypothetically it is accepted that a wrong has been committed in some other cases by introducing a concept of negative equality the respondents cannot strength their case.
They have to establish strength of their case on some other basis and not by claiming negative equality."
A prayer for dismissal of the appeal was made by him.
9) The appellant on the recommendation of the District Selection Committee vide letter dated 02.03.1993 was appointed as a Hindi Teacher by the District School Education Officer (formally known Inspector of schools) on the pay scale of Rs. 1300 - 2205 per month. Thereafter, the appellant had been granted revised pay scales on revision of pay by 3rd and 4th Pay Commission. The pay scale which was granted to the appellant clearly shows that it was as admissible to a teacher on the post of under-Graduate scale. The pay scale for the post of under-Graduate scale and that of the Graduate scale is different. This fact stands substantiated from Table-1 appended as Annexure - I with the affidavit-in-opposition.
10) It would be expedient to refer to Table-1 appended as Annexure I with the affidavit-in-opposition filed by respondents No. 2 and 4 which is as under;
"TABLE-1
Showing change of scale of pay under 1st, 2nd, 3rd and 4th Pay Commission
Sl. No
Name of the Post
Recommending Authority
Appointing Authority
1st Pay Commission
Scale of Pay
2nd Pay Commiss-ion
3rd Pay Commission
4th Pay Commission
1
Asst. Teacher, Hindi/Englis h/Science etc. (Post of UnderGraduate Scale)
District Selection Committee (DSC)
District School Education Officer
Rs. 425- 700
Rs. 1300 - 2205 Under graduate scale at which the petitioner was appointed
(a) Rs. 3725- 6165 for Under graduate. (b) Rs. 4250- 7170 for Graduate in Arts/Science/ Commerce
(a) Rs. 9900- 19370 for Under graduate. (b)Rs. 11300- 22000 for Graduate.
2.
Asst. Teacher, Hindi/ English/ Science etc. (Post of Graduate Scale)
Meghalaya Public Service Commission (MPSC)
Director of School Education & Literacy
Rs. 525- 1050
Rs. 1700-3070 for Graduate Teachers who teaches either in secondary section alone or in both Upper Primary & Secondary section
(a)Rs. 5300- 9180 for Graduate with B.Ed. (b)Rs. 5100- 8740 for Graduate without B.Ed.
Rs. 14100- 27510
11) The cumulative effect of the above material leads to irresistible conclusion that the appellant was appointed as Assistant Teacher on the post of under-Graduate level on the recommendation of the District Selection Committee, East Khasi Hills, Shillong by the District School Education Officer (formally called Inspector of schools). Any communication addressed by an official of the Department would not confer any legally enforceable vested right in the appellant especially when he had not been able to demonstrate that the State had in fact acted upon the said communication. It has been the categorical stand of the respondents that these letters were never accepted by the Government and given effect to by the respondent Department being not in consonance with the Rules. The contention of the appellant, is thus, rejected.
12) As noticed and concluded above, the appellant was appointed as Assistant Teacher on the post of under-Graduate scale. The plea of the appellant is that the respondents be directed to produce the advertisement by virtue of which he was appointed in 1993. The appellant has asserted a fact and in such circumstances, it was incumbent upon him to substantiate the plea by placing sufficient material on record. This prayer of the appellant after more than two and a half decades of his appointment cannot be acceded to as no fishing enquiry would be permissible in exercise of writ jurisdiction under Article 226 of the Constitution of India. Moreover, no such contention or prayer was raised before the learned Single Judge.
13) The learned Single Judge held that the appellant was appointed against the post of under-Graduate scale and in such a situation the claiming of the pay scale to the post of Graduate scale was unsustainable. Further, the post of under-Graduate scale as per the above referred table is different post from Graduate scale as two posts have different pay scales. The relevant observation of the learned Single Judge reads thus,
"9. The petitioner admittedly has been appointed against the post of under-Graduate scale he cannot claim the pay scale of the post of Graduate scale. The post of under- Graduate scale and post of Graduate scale as per the table shown above are two different posts having two different pay scales. Petitioner has not challenged the scale of pay as was given to him as per 3rd Pay Commission, rightly so because he was entitled to the same. Now, while noticing as per 4th Pay Commission for graduate Assistant Teacher appointed against the post of under-Graduate scale, the revised pay scale is Rs. 11,300 - 22,000/- whereas, for the post of Graduate scale the pay scale is Rs. 14,100-27510/- has claimed the same."
Nothing was shown that the approach or the conclusion of the learned Single Judge was erroneous or perverse warranting interference by this Court in writ appeal.
14) In view of the above facts and circumstances as discussed above, in our opinion the learned Single Judge has rightly declined the claim of the writ petitioner for revised pay scale of Rs. 14,100 - 27,510 which is payable to the post of Graduate scale.
15) Finding no merit in the writ appeal, the same is hereby dismissed.