The High Court Special Bench dismissed the State's appeal against the Single Judge's order granting pay fixation and discrimination relief to a retired NDSI instructor who was senior to others appointed at a higher scale.
The appeal was dismissed, upholding the Single Judge's order granting pay fixation and discrimination relief.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR
D.B. Special Appeal Writ No. 257/2019
In
S.B. Civil Writ Petition No.18106/2012
The State of Rajasthan, through Secretary, Department Of Physical Education, School Education, Secretariat, Jaipur.
----Appellant-Respondent
Versus
----Respondents
| For Appellant(s) | : Shri Ganesh Meena, Addl. Advocate General |
|---|---|
| For Respondent(s) | : Shri P.S. Tomar |
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
Judgment
06/02/2019
(PER HON’BLE MOHAMMAD RAFIQ, J.)
This appeal has been preferred by the State of Rajasthan challenging the judgement of the learned Single Judge dated
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18.11.2017, who thereby allowed the writ petition filed by respondent-Balram Verma with direction to the appellant-State to revise and fix his pay in the pay scale of Rs.2200-4000 with effect from 1.9.1988 and corresponding pay scale of Rs.8000-13500 with effect from 1.9.1996 in continuation of the fixation already made at Rs.500-520 with effect from 27.5.1973. It was also directed that consequential benefits and arrears of salary shall be released in favour of the respondent-writ petitioner. Considering that he retired long back, his pension and retiral benefits were released to him with interest @ 9% per annum.
Shri Ganesh Meena, learned Additional Advocate General argued that the respondent filed the writ petition claiming the aforesaid relied in the light of the orders dated 2.1.1968 and 16.8.1991 and consequential revision of pension on the basis of similar benefits extended to Brij Jiwan Lal Sharma and Om Prakash Sharma, both National Discipline Scheme Instructors (for short-`NDSIs’). As per the averments of the writ petition, the respondent initially joined the service of Central Government as Instructor between the year 1960-68 in the scale of Rs.110-230 and completed the reorientation training prescribed under the National Fitness Corps Programme. A draft containing the terms and conditions for transfer of services of NDSIs was circulated to the State Government. This was known as Memo of Understanding dated 2.11.1968. To materialise the above policy, a notification in the Gazette of Rajasthan was published on 14.10.1976 whereby the date of absorption of NDSIs was scheduled as 1.3.1973 for all 529 NDSI including the petitioner. A condition was mentioned in the notification that the inter se seniority of absorbed NDSIs will remain unchanged. The Central Government by order dated
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27.5.1978 in exercise of its power under proviso (1) Rule 6(C) of Rajasthan Educational Subordinate Services Rules, 1971 read with notification dated 26.10.1976 appointed the NDSIs with effect from 1.3.1973 on the equated posts or class of posts on the basis of terms and conditions of MoU. It was submitted that the respondent possessed the qualification of graduation and Diploma in Physical Education at the time of absorption and the last pay scale of the petitioner along with other similar situated persons including Brij Jiwan Lal Sharma and Om Prakash Sharma under the Government of India on 1.1.1973 was Rs.440-750. The appellant-State however granted Grade-I in the pay scale of Rs.225-525 to 14 juniors including Brij Jiwan Lal Sharma and Om Prakash Sharma on 22.12.1975. The argument of discrimination was made by the respondent-writ petitioner, which is found favour with the learned Single Judge. Hence this appeal.
Shri Ganesh Meena, learned Additional Advocate General submitted that the persons with whom the respondent-writ petitioner was claiming parity were previously working with the Central Government on the post of Sr. NDSI Gr.I or II. Their absorption as per the terms and conditions was made in the pay scale of Rs.160-360, whereas the respondent was working under the Central Government on the post of Junior NDSI and thus as per the terms and conditions, the State Government made first absorption in the pay scale of Rs.110-230 applicable to that post. The respondent-writ petitioner was appointed in service on 21.1.1965 while Brij Jiwan Lal Sharma was appointed on 1.5.1960 and Om Prakash Sharma was appointed on 11.10.1960 on the post of Jr. NDSI Gr.I. Brij Jiwan Lal Sharma and Om Prakash Sharma were promoted as Sr. NDSI Gr.II with effect from
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1.1.1962 and 31.3.1966 respectively. The respondent-writ petitioner was still junior NDSI Gr.I at the time of his absorption under the State Government.
Shri Ganesh Meena, learned Additional Advocate General submitted that the learned Single Judge failed to consider the additional affidavit filed by the appellant-State wherein the details of the petitioner as well as other absorbed in the State Government was mentioned. It was demonstrated that the respondent-writ petitioner is not entitled for any parity with Brij Jiwan Lal Sharma and Om Prakash Sharma because other persons are working as Sr. NDSI prior to his absorption, whereas the petitioner-respondent was working only as Jr. NDSI Gr.I. Yet another affidavit was submitted by the officer in charge giving complete details and comparative chart of the respondent-writ petitioner and Brij Jiwan Lal Sharma and Om Prakash Sharma to demonstrate that the respondent-writ petitioner cannot claim parity and pay scale and other facilities that were given to those two persons. The pay scale of the respondent-writ petitioner at the time of absorption with the State Government was Rs.110230, whereas Brij Jiwan Lal Sharma and Om Prakash Sharma were drawing salary in the pay scale of Rs.150-240. It is therefore that at the time of absorption, the respondent-writ petitioner was absorbed on the post of PTI in the pay scale of Rs.110-230 and Brij Jiwan Lal Sharma and Om Prakash Sharma were absorbed on the corresponding Gr.II in the pay scale of Rs.160-360.
It is argued that discrimination can be raised only when equals are being treated alike. There can be no comparison between unequals. The argument of discrimination, therefore, wholly untenable. The learned Single Judge has erred in law in not
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considering the order dated 7.5.1991. It is denied that the respondent-writ petitioner was senior to the other 14 NDSIs, who were absorbed in the services of the State Government.
Shri P.S. Tomar, learned counsel for the respondent opposed the writ petition and submitted that respondent having retired from the services of the respondent from the post of NFC Physical Education Teacher, Gr.I is presently more than 75 years old. The respondent is appointed as Junior Grade NDSI Gr.I on 21.1.1965 with the Central Government. He as well as other NDSIs were absorbed in the services of the State Government on 1.3.1973 on the post of PTI Gr.II in the pay scale of Rs.200-450 as direct recruitment in compliance of the MoU dated 2.11.1968. Rule 6(C) of Rajasthan Educational Subordinate Service Rules and Rule 6(6) (IV) provides that inter se seniority shall remain unchanged even after absorption. Respondent-writ petitioner on attaining the age of superannuation retired on 31.10.1997. However, his fixation of pay was completed two years thereafter and therefore he had no knowledge with regard to granting higher pay scale to his juniors Brij Jiwan Lal Sharma and Om Prakash Sharma and other 12 juniors with effect from 22.12.1975 with pay scale of Rs.225 to Rs.525. When the respondent-writ petitioner learnt that the appellant-State has granted higher pay scale to the 14 junior persons, he filed writ petition, which was disposed of by judgement of the coordinate bench dated 17.5.2010. The respondent-writ petitioner therefore accordingly submitted a representation on 17.5.2010. The Union of India examined his representation and wrote a letter dated 28.6.2010 to the State Government stating therein that the direction given in the guidelines dated 2.11.1968 has not been adhered to by the State
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Government. The representation of the writ petitioner was illegally rejected on 10.3.2011. Learned counsel referred to the chart filed with the written submissions, the MoU dated 2.11.1968 executed in between the UOI and the State Government for perusal of the Court. The State Government vide notification dated 14.10.1976 amended Rajasthan Educational Subordinate Service Rules, 1971 so as to bring them in conformity with the aforesaid MoU. The new Rule 6(c) was inserted soon after Rule 6(b). Rule 6(c) provides that NDSI’s so appointed be considered as direct recruits to the service on the date they are taken over in the service of State Government i.e. 1.3.1973. It is argued that one Ram Pratap Yadav approached the Sureme Court by filing the Writ Petition No.1198/1997 on the premise that the State Government have not granted benefit given by the MoU dated 2.11.1968. The Supreme Court allowed the relief. Reliance is placed on Rule 29 of the Rajasthan Educational Subordinate Service Rules, 1971 to argue that the old NDSIs including the respondent-Balram Verma and 14 juniors of the respondent including Brij Jiwan Lal Sharma and Om Prakash Sharma, who were graduates were absorbed as direct recruitment on the post of PTI Gr.II with effect from 1.3.1973. The case of the respondent is fully covered by the aforesaid judgement of Supreme Court.
We have heard Shri Ganesh Meena, learned Additional Advocate General and Shri P.S. Tomar, learned counsel for the respondent and perused the material on record.
It is not in dispute that the learned Single Judge has recorded the finding that the respondent-writ petitioner possessed the qualification of graduation in 1964 and with effect from 1.3.1973, he was absorbed in the service of State Government
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and his pay was fixed in the pay scale of Rs.440-750 as was done in the case of Brij Jiwan Lal Sharma and Om Prakash Sharma along with 12 other persons. The respondent along with other persons was fixed on the post of PTI Gr.II in the pay scale of Rs.200-450, which is proved from the letter dated 9.10.1991 and the pay fixation order of Brij Jiwan Lal Sharma in the service book of the respondent. The terms and conditions of transfer demonstrate that the inter se seniority of the absorbed NDSIs would remain unchanged, but the State Government contrary to the scheme of transfer granted Gr.I in the pay scale of Rs.225-525 to 14 junior persons including Brij Jiwan Lal Sharma and Om Prakash Sharma on 22.12.1975 and thereby caused discrimination with the respondent-writ petitioner by not granting benefit of pay scale on that date.
The learned Single Judge has noted that the State Government has passed the order dated 27.5.1978 in compliance of the MoU dated 2.11.1968 and revised the pay scale and granted Grade-II with effect from the date of respondent passing graduation i.e. 1964. Thus appointment of all the NDSI so appointed were to be considered as direct (recruits) in service on the date they were absorbed in the service of the State Government with effect from 1.3.1973 as per notification dated 14.10.1976 and order dated 27.5.1978.
The seniority list (Annexure-9) dated 11.12.1993 in which name of the respondent was mentioned at S.No.74, but in column 2 his placement in the seniority of the divisional level was indicated to be 8(70)JA. He submitted that names of the above referred to 14 NDSI, who were also absorbed in the services of the State Government were not included in the seniority list.
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Subsequently, however, their names were added vide seniority list (Annexure-10) dated 3.5.1994. In their placement number in the seniority list at divisional level, Jeevan Lal Sharma was placed at No.17A(1), Shiv Kumar Sharma at 17A(2), Hari Charan Sharma at S.No.17A(3) and lastly upto 17A(9) for Om Prakash Sharma. Thus obviously they were placed much below the respondent-writ petitioner, a fact which could not be disputed by the appellant, therefore, by virtue of provisions of Rule 29 of the Rajasthan Subordinate Service Rules, 1971 and provisions of clause 6(c) of notification dated 14.10.1976. The aforesaid 14 persons were liable to be treated junior to the respondent.
The learned Single Judge, in our view, has rightly held that the controversy in the present case is covered by the judgement of the Supreme Court in the case of Ram Pratap Yadav vs. UOI, Writ Petition No.1198/1987. The order of Supreme Court in that case is reproduced hereinunder:
“The main claim of the petitioner is this writ petition under Article 32 of Constitution is that his case is squarely covered by the Government guidelines issued in 1968 and since he has the requisite qualification as prescribed under the guidelines he should be fixed in the DPE cadre. A letter has been produced in court dated 21st June, 1991, issued by the Ministry of Human Resources Development in which the petitioner case has squarely been dealt with. We may exact the contents of the letter:
I am directed to invite your attention on the above noted subject and to say that the Government of India has issued guidelines (copy enclosed) in 1968 regarding holder/post-matriculation Certificate holders in physical Education for the purpose of pay fixation. Shri Ram Pratap Yadav completed his graduation in
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October 1968. as per our guidelines, his qualification in along-with NDS training undergone by his is equivalence to the D.P.Ed., Degree. His pay may, therefore, he referred with retrospective effect in the PTI/DPE cadre of the State Government in account of his being equivalent to D.P.Ed. Holders. The additional expenditure incurred in this respect will be borne by the Central Government as envisaged in the terms and condition of transfers of the Ex-NDS instructors. Necessary action in the matter may be taken immediately under intimation to this department. The case is fixed for final hearing on 10.07.1991.
We are of the view that this order has virtually disposed of the matter in favour of the matter in favour of the petitioner. He is already in the cadre of PTI. In view of the fact that he has acquired the higher qualification contemplate in the Government Scheme of 1968, he is to be fitted in the DPE cadre and the letter clearly specifics that the liability shall be borne by the Central Government. In view of these statements in the letter, we allow the writ petition and directed that the petitioner may be given the benefits contained in the letter by fixing him in DPE cadre within three months from today. No. Costs.”
It could be evident from the aforesaid order that Ram Pratap completed his graduation in October, 1968 as against the respondent, who completed the graduation in 1964. Even though, Brij Jiwan Lal Sharma and Om Prakash Sharma, the two persons with whom the respondent-writ-petitioner claimed parity were shown junior to the respondent, they never challenged that seniority list and that position continued till they retired. In this fact scenario, when the respondent was taken as senior to them, the learned Single Judge, in our view, was wholly justified in allowing the writ petition.
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We do not find any infirmity in the impugned order. The appeal is dismissed.
(GOVERDHAN BARDHAR),J
(MOHAMMAD RAFIQ),J
RS/27
3 issues framed by the court
Whether the High Court Single Judge erred in allowing the writ petition regarding pay fixation and seniority of NDSIs.
Whether the respondent, being senior to the other absorbed NDSIs, was discriminated against in pay scale fixation.
Whether the claim for parity is covered by the Supreme Court judgment in Ram Pratap Yadav vs. UOI.
Colour shows how this judgement treated each authority
Ram Pratap Yadav vs. UOIApplied¶48
Ram Pratap Yadav vs. UOI, Writ Petition No.1198/1997
State of Rajasthan
Balram Verma
Union of India
Director, Department of Secondary School Education
Mohammad Rafiq
Goverdhan Bardhar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
