Allowed

Virender Kumar v. State

Himachal Pradesh HC2 Nov 2010CWPOA/5053/2008

Case brief

AI extract

What is this about?

Writ petition filed by a retiring school teacher seeking fixation of pay in higher scales as lecturer and principal of a senior secondary school. The High Court allowed the petition, directing the State to fix pay under FR 22(a)(i) and FR 22-C with interest.

What did the court decide?

Direct respondents to fix petitioner's pay in scales Rs. 2100-3700 and Rs. 2400-4000 under FR 22(a)(i) and FR 22-C with a 7% annual interest.

Virender Kumar Vs State — Pension and Retirement Benefits | Himachal Pradesh HC (2010)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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CWP (T) No. 5053/2008

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Reserved on:17.9.2010

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Decided on:2.11. 2010

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Virendra Kumar. Petitioner.

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Versus

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State of Himachal Pradesh and another. …Respondents.

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________________________________________________________

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Coram:

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Hon’ble Mr. Justice Rajiv Sharma, Judge.

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Whether approved for reporting?¹ No.

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For the petitioner : In person.

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For the Respondents: Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Asstt. Advocate General.

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Justice Rajiv Sharma, Judge .

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Material facts necessary for the adjudication of this petition are that the petitioner was appointed on 31.12.1965 as Lecturer in Higher Secondary School. Due to adoption of new policy on Education in the year 1986 in the School Education System, Higher Secondary System of School Education no longer existed and instead Senior Secondary School stood established. However, initially, no Recruitment

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1 Whether reporters of the local papers may be allowed to see the judgment? No.

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and Promotion Rules were framed for the post of Principal Senior Secondary School. New Recruitment and Promotion Rules were framed under Article 309 of the Constitution of India called “Recruitment and Promotion Rules for the post of Principal, Government Senior Secondary School/Basic Training School, Class-II (Gazetted)” in the year 1992.

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Petitioner continued to work on the post of Lecturer in the Senior Secondary School till 3.4.1987. He was appointed and posted as Principal, Government Senior Secondary School, Banikhet, District Chamba. He joined his duties on 4.4.1987. He sought volunteer retirement from Government Senior Secondary School, Sihunta, District Chamba on 16.3.1991. According to averments contained in the petition, the post of Lecturer, Senior Secondary School (10+2) was a new post and the duties and responsibilities attached to the post were of great importance than attached to the post of Lecturer, Higher Secondary School (10+1 classes). Similarly, the designation of the post of Principal of Higher Secondary School no longer existed after new stream and 10+2 system came into existence and the duties and responsibilities attached to the post of Principal, Senior Secondary School were of great importance vis-à-vis post of

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Principal of Higher Secondary School (10+1 Classes). Petitioner, who was teaching as Lecturer in Higher Secondary School continued to work as Lecturer in 10+2 system after March/April, 1986. The general pay revision was ordered on 23.3.1989 whereby the Lecturers were placed in the pay scale of Rs. 1800-3200, Rs. 2000-3500 (after 8 years service) and Rs. 2100-3700 (after 18 years service) and the Principals were placed in the pay scale of Rs. 2400-4000.

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Petitioner has appeared in person and has vehemently argued that he had discharged the higher duties of Lecturer in Senior Secondary School with effect from April, 1986 till 4.4.1987 and thereafter as Principal, Senior Secondary School till the date of his retirement, i.e. 16.3.1991. He has also contended that he was entitled to the benefit of FR 22 (a) (i) read with FR 22-C and FR 23. According to him, he was required to be placed in the pay scale of Rs. 2100-3700 with effect from 1.1.1986 as per FR 22 (a) (i) and re-fixed on 1.1.1987 as per FR 22-C. He also submitted that his pay was required to be fixed under FR 22 (a) (i) on 4.4.1987 in the pay scale of Rs. 2400-4000 and refixed as per FR 22-C against the post of Principal.

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Mr. P.M. Negi, learned Deputy Advocate General has strenuously argued that the petitioner is not entitled to the reliefs sought for. According to him, the petitioner had earlier filed O.A.No.941/1996 on the same and similar facts, which was dismissed by the learned Tribunal on 8.8.1996.

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I have heard the learned counsel for the parties and have perused the pleadings carefully.

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It will be appropriate at this stage to note that the petitioner had earlier approached this Court by way of CWP No. 598/1984, which was transferred to the learned erstwhile Himachal Pradesh Administrative Tribunal and the same was assigned T.A. No. 81/1987. He had prayed for the following reliefs in T.A. No. 81/1987:

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(a) “That the respondent may be directed to modify the pay scale of Rs. 825-25-850-30-1000-40-1200-501400-60-1580 to Rs. 825-25-850-30-1000-401200-50-1400-60-1880 by increasing the maximum of pay scale by 5 increments.

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(b) That the respondent may be directed to fix the pay of the petitioner in the higher pay-scale of Rs. 400800 under Fundamental Rule 22-C.

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(c) Further grant the petitioner all consequential benefits.

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(d) That the cost of the writ petition may be allowed to the petitioner.

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(e) Any other order deemed just and proper be passed in the facts and circumstances stated hereinabove.”

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Similarly, petitioner had also approached this Court by way of CWP No.680/1994, which was transferred to the learned Himachal Pradesh Administrative Tribunal and registered as T.A. No. 85/1987. Reliefs prayed for in T.A. No. 85/1987 read thus:

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(a) “That the petitioners be held entitled to the award of pay scale of Rs. 400-800 on the basis of 25% of their strength from 1.11.1966 instead of 31.12.1977.

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(b) That the respondent may kindly be directed to award the pay scale of Rs. 700-1100 to 15% Lecturers of Government Higher Secondary Schools with effect from the date it was awarded to the Headmasters/Headmistresses of Government High Schools.

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(c) Further grant the petitioners all consequential benefits and direct the respondent to treat the arrears accrued to the petitioners as being deposited in their general provident fund from the date these became due to them.

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(d) That the cost of the petition be awarded to the petitioners.

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(e) Pass such other order as may be deemed fit and just by this Hon’ble Court.”

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T.As. No. 81/1987 and 85/1987 were decided by

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the Tribunal on 8.1.1992. Operative portion of the judgment reads thus:

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“TA-81/87 and TA 85/87 have been filed by Shri Virender Kumar. Initially, in TA-85/87 Shri Ganga Parshad was also one of the co-petitioner with Shri Virender Kumar,

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whose name was deleted vide order dated May 23, 1986 and as such, the petitioner Virender Kumar is entitled to the relief only in one of the petitions and we award the same to him in TA-81/87 on the basis of TA-83/87 in which we direct the respondent to fix the petitioner in the revised pay scale of Rs. 700-1580/- with effect from January 1, 1978. Shri Ram Prakash in TA-83/87 and Virender Kumar in TA-81/87 were both Lecturers posted in Government Higher Secondary School, Matiana and as such in the case of Virender Kumar TA-81/87 and TA85/87 we direct the respondent to fix the petitioner in the revised pay scale of Rs. 700-1580/- with effect from January 1, 1978 and pay him the arrears to which he may be found entitled to within a period of three months in view of the directions given and accordingly the petitioner is entitled to all the consequential benefits to which he may be found eligible with no order as to cost.”

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Petitioner approached the erstwhile Himachal Pradesh Administrative Tribunal by way of OA No. 941/1996. He had prayed for the following reliefs:

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(i) Respondents be directed to fix the pay of the applicant in the pay scale of Rs. 700-1580 w.e.f. 1.1.1978 in terms of the judgment of the Hon’ble Admn. Tribunal in T.A. Nos. 83/87 and 85/87 delivered on 8.1.1992.

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(ii) Respondent be directed to treat the applicant as Lecturer w.ef. 31.12.1965 to 7.4.1987 and grant him 2 Prop. Increments of Rs. 100/- each on 1.1.1986 as the applicant has worked as Lecturer since 31.12.1965 to 3.4.1987.

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(iii) Respondent be directed to fix the pay of the applicant in the next promotion grade of Rs. 21003700 by applying FR 22 (c) on 4.4.1987 the date

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the applicant got the Class II (gazetted) post and started discharging the duties in the higher Class II post (gazetted).

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(iv) Respondent be directed to award the revised pay scale of Rs. 2400-4000 of Principal to the applicant w.e.f. 1.3.1990 and fixing the pay under FR 22-C.

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(v) Respondent be directed to treat Rs. 150 Sp. Pay as pay in calculating the applicant’s pension.

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(vi) Respondent be directed to revise the applicant’s pension and pay him the enhanced pension and other consequential retirement benefits like gratuity, leave encashment, commuted value of pension with all arrears due.

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(vii) Direct the respondent to pay penal interest to the applicant at market value to the applicant under sub para (i) to (iv) and w.e.f. 29.12.1995 on amount which become payable to the applicant under sub paras (v) and (vi) till the date of realization.”

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Original application bearing No. 941/1996 was

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dismissed by the Tribunal, as noticed above, on 8.8.1996. Judgment dated 8.8.1996 reads thus:

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“We have heard the petitioner in person. The claim sought for by him has already been granted to him in the earlier applications TA-81/87 and TA-85/87 with consequential benefits as detailed in the operating part of the decision of this Tribunal dated January 8, 1992. His grouse is that the said order has not been implemented as arrears arisen from the consequential benefits therein have not been paid. The applicant is entitled to move an application for execution in terms of section 27 of the Administrative Tribunal Act but he cannot claim the

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benefit herein as the earlier judgment dated January 8, 1992 has become final. This application thus is not maintainable on the same cause of action seeking the same relief. Accordingly this application is dismissed in limine.

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Before parting we may observe that this dismissal shall not in any way bar the applicant from getting the earlier judgment of this Tribunal dated January 8, 1992 implemented through this Tribunal in terms of section 227 of ATA to above.”

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Learned Tribunal has come to a wrong conclusion

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that the reliefs sought for by the petitioner in OA No. 941/1996 stood granted to him in the earlier TA No. 81/87 and TA No. 85/87. The reliefs prayed for by the petitioner in TA No. 81/87 and TA No. 85/87 have already been reproduced hereinabove. The relief sought for in OA No. 941/1996 was entirely different and based on different facts. It is in these circumstances that the petitioner was constrained to approach the learned Tribunal by way of present petition.

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Petitioner started discharging duties of Lecturer in the Senior Secondary School after the adoption of 10+2 system of education in the year 1986. He worked in this capacity till he was promoted as Principal, Government Senior Secondary School. He sought volunteer retirement on 16.3.1991. Respondent-State has not taken into

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consideration that the petitioner had started discharging duties of higher responsibilities while working Lecturer in Senior Secondary School as well as Principal, Senior Secondary School. It was only in the year 1992 that the Recruitment and Promotion Rules were framed for the post of Principal, Government Senior Secondary School. Petitioner was earlier teaching as Lecturer upto 11^th standard and after the adoption of 10+2 system, as noticed above, he started teaching upto 10+2 standard. Respondent-State has not taken into consideration FR 22 (a) (i) and the instructions issued thereunder. Petitioner after assuming the duties of Lecturer/Principal, Government Senior Second School has assumed the duties and responsibilities of great importance vis-à-vis 11^th standard stream. He was entitled to get his pay fixed under FR 22 (a) (i) read with FR 22-C and 23. The ground taken by the respondents that there is no distinction between the post of Principal and Lecturer in the Higher Secondary School and Senior Secondary School after the adoption of 10+2 Education System is not tenable. 10+1 system was only upto 11^th standard and 10+2 system is upto 12^th standard.

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Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to consider the case of the petitioner for fixation of his pay under FR 22 (a) (i) on 1.3.1986 in the pay scale of Rs. 2100-3700 and for re-fixation his pay on 1.1.1987 under FR 22-C. His case shall also be considered for fixation of his pay under FR 22 (a) (i) on 4.4.1987 in the pay scale of Rs. 24004000 and for re-fixation on 1.1.1988 under FR 22-C. In normal circumstances, the Court would have restrained itself from granting interest; however, in this case, the petitioner has been deprived of the benefits for more than two decades as such he is entitled to interest @ 7% per annum. Needful be done within a period of two months after the production of certified copy of this judgment by the petitioner. There shall, however, be no order as to costs.

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(Rajiv Sharma), Judge

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2.11. 2010 awasthi

Virender Kumar v. State

Case brief

What is this about?

What did the court decide?

Virender Kumar v. State

Case brief

What is this about?

What did the court decide?

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