Swapna Majumder (Rakshit) vs State Of Tripura And Ors.

By means of this writ petition, the petitioner has urged this court for directing the respondents to give her the benefit of the graduate scale of pay w.e.f. the date of her appointment however restricting the monetary benefit from 01.01.1993 alongwith other consequential benefits. The petitioner has also urged to quash the decision contained in the Memorandum No.F.15(2-36)-SE/GIA/PEU/2015/987-989 dated 27.06.2016 issued by the Director of Secondary Education, Annexure-18 to the writ petition. Further, the petitioner has urged to direct the respondents, particularly the respondents No.3 and 4, to place the name of the petitioner at Sl. No.1 in the final seniority list of Assistant Teachers of Budhai Saha Primary School.

The facts are mostly admitted. The petitioner was appointed on 28.06.1990 as is evident from the draft seniority list published by the communication under No.F.12(2)B.S.P.S./ Seniority/05 issued by the Secretary, School Managing Committee, Budhai Saha Primary School, Bridhyanagar, Khayerpur, West Tripura, the respondent No.4 [Annexure-R/1 to the reply filed by the respondents No.4 and 5]. Admittedly, the school namely Budhai Saha Primary School, Bridhyanagar where the petitioner was appointed as the Assistant Teacher was a non-Government school. By virtue of Memorandum No.F.10(10-39)-DSE/90 dated 11.03.1992 issued by the Director of School Education, the said school was recognized. By the order No.F.10(10-39)-DSE/90 dated 19.12.1992, the said school was brought under the Grant-in-Aid School and all the appointments made by the Managing Committee prior to 19.12.1992 were approved by the Government. However, it was made clear that the further appointments would be regulated by the Grant-in-Aid Rules.

The petitioner passed the degree of Bachelor of Arts (two years course) on 16.03.1983 but on her appointment in that school as Assistant Teacher, she was given under-graduate scale of pay. On induction under the Grant-in-Aid Scheme, the petitioner had represented for providing her the designated scale for the graduate teacher for the said degree of Bachelor of Arts from the date of her appointment in terms of Office Memorandum No.F.4(62)-Fin(PC)/ 92 dated 07.12.1992, Annexure-8 to the writ petition. The petitioner has candidly stated that on such induction she was given the benefit of one advance increment in terms of the Memorandum dated 07.12.1992 by the Memorandum No.F.10(10- 39)-DSE/95 dated 16.01.1999. According to Rule 7(2) of Tripura Grant-in-Aid (Government Aided Schools) Rules 2005 all the entitlements of the teaching and non-teaching employees shall be the same as that of the teaching and non-teaching employees of the Government schools, subject to condition that all instructions, rules and regulations determining the recruitment of the teaching and non-teaching employees are strictly adhered to. For purpose of reference, the relevant paragraph of the Office Memorandum dated 07.12.1992 is extracted hereunder:

"(F) FOR THE SCHOOL TEACHERS AND SIMILAR OTHER EMPLOYEES (SUCH AS, PHYSICAL INSTRUCTOR, LIBRARIAN, COACH, CLAICAL TEACHER, HINDI TEACHER, VERNACULAR TEACHER, DRAWING TEACHER, CRAFT INSTRUCTOR/TEACHER ETC. WHO ACQUIRED HIGHER ACADEMIC QUALIFICATION IN THEIR RESPECTIVE TRADE/SUBJECT TO WHICH THEY ARE ATTACHED ON OR AFTER 24-4-1982.

i) They shall be granted higher pay scales according to their qualification w-e-from 1-1-88 or the date of publication of result, whichever is later;

ii) The benefit shall be admissible only for those incumbent who acquired higher qualification upto the period of 31-12-91 (date of publication of result)

iii) Pay shall be notionally fixed under the provision of F.R.22(a)(i) upto 31-12-91, with actual Financial benefit from 1-1-1992.

However, after fixation of pay under F.R.22(a)(i), date of next increment of the concerned employees shall fall due on the date of their earning of periodical increment as usual;

iv) Such benefit admissible on the event of acquiring higher qualification shall be restricted only for the Graduation/Graduation with Honours/Post Graduation Degree (Not Diploma/Certificate) in the particular trade/subject to which the particular incumbent belongs to;

v) Pay scales for the posts of 'Librarian' and 'Physical Instructor' on acquiring higher qualification shall be determined in accordance to Sl. Nos.1 and 2 as shown under (D) above.

Pay scales for the posts of 'Coach' and 'Senior Coach' on acquiring higher qualification, shall be determined in accordance to Sl. Nos.3 and 4 as shown under (D) above.

vi) Benefit of movement from lower grade to higher or highest grade under Part-B or Part-C or Notes at P/59 (for School Teacher) under Schedule-III of the R.O.P. Rules, 1988 shall be allowed after calculating the period of service from the date of enjoying such higher pay scales, pay scales in such cases shall be determined in the light of scales mentioned at (B) and (D) above.

vii) The aforesaid benefits shall also be admissible in respect of such categories of employees who acquired higher qualification in the respective trade/subject prior to 24-4-82, but were not granted the appropriate scale accordingly to their qualification."

The petitioner having read those provisions in conjunction with Rule 7(ii) of Tripura Grant-in-Aid (Government Aided Schools) Rules, 2005 has asserted that she is entitled to get the benefit of that Memorandum dated 07.12.1992. The memorandum dated 07.12.1992 which was further clarified by the Memorandum dated 10.05.1993, Annexure-10 to the writ petition. The said Memorandum dated 10.05.1993 provides as under:

"Government of Tripura

Directorate of School Education (Grant-in-Aid Section)

Dated, Agartala, the 10th May, 1993.

M E M O R A N D U M

The undersigned is directed to say that the teachers of Grant-in-Aid Schools in Tripura are enjoying Pay Scales at per with those of Govt. Schools, under the Provision contained in the State Civil Services (Revised Pay) Rules, 1988. The benefit of higher Pay Scales in the appropriate grade & also grant of higher Pay Scales on acquiring of higher qualification in respective trade/Subject, to Assistant Teacher and some other categories of employees under Education Department, Government of Tripura, as introduced vide Finance Department, Government of Tripura, Office Memorandum No.F.4(62)- Fin.(PC)/92 dated 7th December, 1992, (Copy enclosed) shall be uniformly applicable for the teachers & Other Categories of employees of Grant-in- Aided Schools, under the terms and conditions laid down therein.

This issues with the concurrence of the Finance Department vide their U. O. No.32-Fin./(PC)/93 dated 9.3.1993.

Sd/- Illegible Joint Secretary to the

Government of Tripura."

Therefore, there cannot be any confusion in respect of applicability of the Memorandum dated 07.12.1992 in the aided schools. The petitioner has contended that her appointment has to be treated as the substantive appointment from 28.06.1990 and there cannot be any confusion in this regard inasmuch as this court in Sri Mihir Debnath vs. State of Tripura and others (Judgment and order dated 30.04.2014 delivered in W.P.(C) No.167 of 2012) had occasion to observe as under:

"14. After reading of this condition as appearing in the later part of the said appointment letter dated 28.06.1990 there cannot be any amount of doubt that the letter of appointment had meant a substantive appointment. Non-payment of proper remuneration for the strength of the fund cannot behove other interpretation. There was a clear assurance that that appointment was found by assurance that due remuneration would be paid whenever the school would be brought under the grant-in-aid scheme. In Para-8 of the counter affidavit, the respondents No.1 & 2 did not challenge the said date of appointment i.e. 28.06.1990. What Mr. J. Majumder, learned State counsel has submitted is that the petitioner must fall within the categories of persons having engagements of varied nature. According to this Court, the petitioner does not belong to in those categories as stated. In view of this, the substantive appointment of the petitioner has to be construed from 28.06.1990."

The petitioner had submitted representation on 21.02.2015 to the Director of School Education for granting her the graduate scale w.e.f. 28.06.1990 in terms of the Office Memorandum dated 07.12.1992, Annexure-8 to the writ petition. But the said representation did not evoke any positive yield. Hence, the petitioner has filed this writ petition to remedy her grievance.

The respondents No.1, 2 and 3, represented by Mr. J. Majumder, learned counsel, by filing the reply have stated that the Government grant had started for Budhai Saha Primary School from 01.01.1993. They have categorically stated that the service of existing teachers is counted from the date of the order dated 19.12.1992, not from the date of recognition of the school. It has been stated by those respondents that the Office of the answering respondent No.2 had changed the system and introduced a new system from 01.01.1992 providing one additional increment instead of giving the higher scale of pay for acquisition of higher qualification. Therefore, the applicability of the Office Memorandum dated 07.12.1992 is not shrouded by any doubt. The petitioner was favoured with one advance increment w.e.f. 01.01.1993 in terms of the provisions of Memorandum dated 07.12.1992. The respondents have in their reply stated as under:

"But the Hon'ble High Court directed to the State respondents that his qualifying service should be counted from the date of his first joining that is 28-06- 1990. Not from the date of Government Order i.e. on 01-01-1993 from which date the School was brought under Grant-in-Aid Scheme."

But on the other hand, those respondents have further stated that:

"The provision of giving higher scale of pay as per higher qualification is applicable for the teachers who were in Government service in Government Schools. The office of the answering respondent No.2 provided this benefit to the teachers of Government Schools upto 31-12-1992. At that time Budhai Saha Primary School was purely a private School. So, the State respondents could provide such benefit to the petitioner. Graduate Teacher scale is given to the designated Graduate Teacher. This scale benefit was not given to Primary School teacher.

The designation of the petitioner was Primary Teacher. Because the said School was Primary School in the year 1990 and it is still a Primary School in the year 2016."

Thereafter, it has also been asserted by the petitioner that she is senior by age of Sri Narayan Ch. Deb. So, her name should be placed at Sl. No.1 in the final seniority list of the Assistant Teachers working under the said school. The respondents No.4 and 5 have filed separate reply questioning the maintainability of the writ petition on the ground of laches as the writ petition has been filed after substantive delay. The respondents No.4 and 5 have also stated that the seniority position could be altered in the process which would not be prejudicial to the person, who is at the top of the list by virtue of his length of service.

Having appreciated the averments and records, it appears that the questions those need response in this case are as under:

(1) Whether the petitioner can get the benefit of Office Memorandum dated 07.12.1992 as she was appointed on 28.06.1990, much prior to the date of induction of the school under the Tripura Grant-in-Aid (Government Aided Schools) Rules 2005? and

(2) Whether the reliefs can be granted waiving laches as noticed in approaching this court?

Let us first examine whether the petitioner is entitled to the benefits as provided by the Office Memorandum dated 07.12.1992. There is no doubt that by the Memorandum dated 10.05.1993, Annexure-10 to the writ petition, the said Office Memorandum dated 07.12.1992 has been declared to apply for the teachers and other categories of employees of the grant in aided schools. Therefore, the Office Memorandum dated 07.12.1992 shall apply for the teachers who were engaged in the school which is under the Tripura Grant-in-Aid (Government Aided Schools) Rules 2005.

There is no dispute that the petitioner was appointed as the Assistant Teacher under the primary school establishment. Thus, she was drawing the scale of pay for the under graduate teachers. The petitioner has asked for benefit of the said Memorandum dated 07.12.1992. Under the said Office Memorandum dated 07.12.1992, the petitioner is entitled to get the graduate scale but she was not given that benefit. In view of the decision as laid down in Mihir Debnath vs. State of Tripura and Others the petitioner's substantive appointment under the said school has to be treated from the date when the petitioner was appointed in the said school i.e. 28.06.1990. The substantive appointment shall be treated from 28.06.1990, even though the said school came under the Grant-in-Aid Scheme on 19.12.1992. Even in the memorandum dated 10.05.2013, the respondents did not mention whether the said Memorandum would get prospective effect or from any other definite date. Thus, since the petitioner has acquired the higher qualification i.e. the degree of graduation prior to the appointment, the petitioner shall be considered for granting her the graduate scale from 28.06.1990 in terms of the Office Memorandum dated 07.12.1992. The petitioner will not get any monetary benefit upto 31.12.1991, but as the petitioner has relinquished the period till 01.01.1993, this court is not required to make any endeavour about the benefits that would accrue from the period from 28.06.1990 till 01.01.1993. There cannot be any amount of doubt that one increment has been released but not in the graduate scale for acquisition of the degree of Bachelor of Arts, as stated.

Hence, the petitioner would be entitled to the graduate scale w.e.f. 28.06.1990 but since the petitioner has approached this court in a belated stage i.e. on 09.09.2016, the petitioner cannot get any pecuniary benefit for the entire period. As per the said memorandum dated 07.12.1992, there shall be no actual financial benefit till 31.12.1991. The petitioner shall be entitled to get the actual financial benefit from the date 3 years preceding the day of institution i.e. 10.09.2013. It is made clear that from the arrears that would accrue the amount paid as the increment shall be deducted. In terms of the Office Memorandum dated 07.12.1992, the grant of higher pay scale is based on acquisition of higher degree. For the special nature of such grant, the petitioner will not be entitled to any other consequential benefit whatsoever, including the seniority. The petitioner would continue in the said post till she is promoted to her superior post and her seniority in the said grade shall remain unaltered, unless otherwise provided by the competent authority. The respondents No.1 to 5 are directed to pay the petitioner the arrears of pay and allowances after due deduction as stated within a period of six months from the date when the petitioner shall submit a copy of this order to the respondents.

In the result, this writ petition is allowed to the extent as indicated above.

There shall be no order as to costs.