Sushma Bhatia vs State of Haryana

R.S. Mongia, J.—The petitioner, Smt. Sushma Bhatia, was appointed as a Lecturer in Music (Instrumental) in S.D. College, Panipat, on ad hoc basis, on September, 15, 1972. The said College is affiliated to Kurukshetra University. She was appointed on regular basis in the same College on July 15, 1974. Petitioner is stated to have put in resignation on March 1, 1976, but as per the petitioner this was obtained by the Management under duress. As per the service conditions contained in the Kurukshetra University Calendar, which are applicable to the Teachers of the Affiliated Colleges, dispute of an employee can be referred to the arbitration. The petitioner raised dispute and the same was referred to the Arbitrator. The Arbitrator gave the award on 6.10.1976 (Ann. P3) holding that the so-called resignation submitted by the petitioner was obtained by the Management under duress. This award was ultimately made the rule of the Court on June, 7, 1984 by the Additional District Judge inasmuch as the petitioner had lost before the Senior Sub Judge. The Management filed a Civij Revision No. 1915 of 1984 in this Court against the judgment of Additional District Judge making the award a rule of the Court. This Revision Petition was disposed of vide order dated March 12, 1985 (order at annexure P4). The Civil Revision was disposed of on the basis of the statement made by the counsel for the present petitioner, who was respondent in the civil revision. It will be apposite to reproduce the statement as well as the order passed in civil revision, as under :-

"Statement of Sh. V.K. Bali, Advocate Counsel for Smt. Sushma Bhatia Respondent.

My client will be satisfied if she is reinstated as confirmed hand from March 1, 1976. However, she will join the duty from August 1, 1985, she will not have any claim for the salary from the College Management for all this period but the College Management will move the concerned authorities for the grant of back wages to Smt. Sushma Bhalia and as and when the same are made available to the College Management, the same will be paid to her. An amount of Rs. 5000/- said to have been deposited by the Management S.D. College, Panipat in the name of Smt. Sushma Bhatia will be withdrawn by the Management.

March 12, 1985

Sd/- Judge

Statement of Sh O.P. Goel, President, S.D. College Governing Body, Panipat.

I have heard the statement of Sh. V.K. Bali, Advocate counsel for Smt. Sushma Bhatia. The College Management will abide by the same. The matter be disposed of accordingly.

March 12, 1985

Sd/- Judge

In view of the statement of the parties, the revision petition is disposed of accordingly with no order as to costs.

March 12, 1985

Sd/- Judge."

Pursuant to the aforesaid order, the petitioner joined the service of the College on August 1,1985. On reinstatement, the petitioner was granted all the increments as if she had continued in service right from April 1, 1976. However, as per the statement of the counsel for the present petitioner before the Judge deciding the civil revision she was not paid any arrears. After her reinstatement she was getting the due pay as she would otherwise have been entitled to if she had physically worked from April 1, 1976.

On May 23, 1995 (Annexure P2), Director of Higher Education, Haryana sent a communication to the Principal of the College, which reads as under :-

"Subject : Case in respect of Smt. Sushma Bhatia - Grant of Senior/Selection Grade to the Lecturers of non-Govt. Colleges.

Reference your letter No. Nil dated 3.1.1995 on the above noted subject.

You at your personal level, submitted the case of Smt. Bhatia for fixation in the senior scale to the audit cell alongwith the letter under reference. The Audit Cell of the Directorate on proper scrutiny of the case, has found that the fixation on her basic pay at Rs. 1150/- as on 1.8.1985 was not as per rules, whereas it should have been 740/- only in the grade of Rs. 700-1600.

You are requested that the matter be settled at the level of College II Bench of the Directorate and the audit cell at your own level. Her personal file and the Service Book is returned."

On the basis of this communication, the petitioner''s salary was not reduced. However, on August 7, 1999 (Annexure P.1) the Principal of the College wrote to the petitioner as under :-"Dear Madam,

Your case for pay fixation in the new grade being implemented w.e.f. 1.1.1996 was submitted to the Audit Cell of the office of D.H.E. Haryana on 4.8.1999. However, the Audit Cell has directed the undersigned to first take an immediate action in accordance with D.H.E. Haryana Office Memo No. 25/3-90C- 4(2) dated 23.5.1995 and subsequent memo No. 25/3-90C-IV(1) 789 dated 3.8.1998 and only after that her case for pay fixation in new grades can be considered. Copies of the said memos had already supplied to you. However, we are once again supplying a copy of each of both the said memos.

Accordingly, the College is taking action as per order of D.H.E. Haryana and making appropriate revised entries in your service book. It is for your information."

The communications Annexure P. 1, dated August 7, 1999 and Annexure P.2, dated May 23, 1995 have been made the subject-matter of challenge in this writ petition.

Learned counsel for the petitioner submitted that the petitioner having been reinstated on the basis of the order of this Court passed in Civil Revision No. 1915 of 1984, reproduced above, which in turn was based on the basis of the statement made by the petitioner''s counsel, the petitioner was entitled to pay fixation on her reinstatement as if notionally she had worked from April 1, 1976. Of course, the arrears had not to bepaid. However, on reinstatement her pay had to be fixed as of any other person, who was actually in service on April 1, 1976. The stand of the respondents is that for the interregnum period when the petitioner had not physically worked the Management had employed another person and that person having been given full pay alongwith the increments for which the grant-in- aid was also given, the petitioner is not entitled to fount that period for purpose of increments.

We do not find any substance in the stand of the State Government. If notionally, the petitioner, is deemed to be in service, from April 1, 1976, all consequences should flow excepting the arrears upto the date of reinstatement, which were given up by the petitioner before the Judge deciding the revision petition. The petitioner would be entitled to all the increments notionally upto the date of reinstatement and actually after the date of reinstatement. After fixing the correct pay by counting increments on the date of reinstatement, the College authorities are entitled to the grant-in- aid for the post the petitioner is holding on the basis of the pay to which she is entitled on the date of reinstatement, as has been observed above.

For the foregoing reasons, we allow this writ petition and quash the communications Annexures P.1 and P.2 and direct the State Government to keep on releasing the grant-in-aid against the post of the petitioner as per the pay calculated in the terms mentioned above.

Petition allowed.