Hon. Vedpal, J.
Heard Shri Jitendra Nath Jha, the petitioner in person. Shri K.D. Nag appears for the Union of India through Secretary, Sports, Ministry of Human Resources Development, Government of India.
The petitioner has prayed for quashing the judgment and order of the Central Administrative Tribunal, Lucknow Bench (CAT) dated 21.10.1997 and 19.11.1997, passed in Original Application No.20 of 1992 (L) dismissing the application and the order dated 19.11.1997 by which the review application No.31 of 1997 was dismissed.
Brief facts giving rise to this writ petition are that the petitioner was appointed in National Discipline Scheme (NDS) as Instructor in the year 1963 in the pay scale of Rs.110-200/- at Etawah. He was transferred to Lucknow in 1965. The Government of India transferred the three schemes including NDS and merged them into National Fitness Corpus (NFC), and brought about number of changes in the pay scales of the Instructors working in NFC. The petitioner claims that after the merger of NDS in NFC the petitioner was entitled to the salary in the scale applicable to Physical Education Teachers (PET), which was available to Graduate PET teachers. The petitioner, however, continued to work in the pay scale of Rs.110-200/- from 1967 to 1976. His pay scale was revised in the pay scale of Instructor w.e.f. 1.1.1967 on the basis of Supreme Court's judgment in Union of India Vs. R.G. Kashikar & Anr. reported in AIR 1985 SC 431 and the arrears were paid to him. He was, however, 2 entitled to Graduate Trained Instructors' grade, which was not paid to him.
The petitioner filed O.A. No.156 of 1989 in the Lucknow Bench of the Tribunal, which was decided on 15.7.1991 directing that the petitioner's representation be decided. The order was not carried out inspite of reminders. The petitioner claimed that he was discriminated with the employees of the Central Schools. They were paid the revised pay scale of Ex-NFC Instructors by various Government Orders, and that the persons in the pay scale of Rs.110-200/- were given the Post Graduate Diploma Holders pay scale w.e.f. 1.12.1972.
In the objections filed in the CAT, the Central Government contended that the petitioner was Junior NDS Instructor Grade-I in the pay scale of Rs.110-200/- and remained so until he was transferred to the control of the Government of Uttar Pradesh after decentralization of NFC Scheme w.e.f. 1.7.1976. The pay scale of Junior Instructor NDS Grade-I was revised to Rs.330-560/- w.e.f. 1.1.1973 and was paid to the petitioner. The pay scale of Rs.440- 750/- as on 1.1.1973 was not applicable to Junior Instructor NDS Grade-I. It was applicable to Senior NDS Instructor Grade-II. The Central Government issued certain guidelines by letter dated 2.1.1968 for the State Government to facilitate absorption of NDS Instructor in the cadre of Physical Education Teachers, though they were not qualified as they did not hold diploma in Physical Education/ Certificate in Physical Education. Under these guidelines all NDS Instructors, who were graduates had received NDS training followed by reorientation training for NFC Programme were to be treated equivalent to the post of Graduate Diploma Holders in Physical Education and also for supervisory jobs in Physical Education relating to schools. Those NDS Instructors, who were matriculate/ higher secondary examination and had received NDS Training followed by reorientation training under NFC Programme were treated at par with the post of 3 Matriculate Certificate Holder in Physical Education. If they had put in three years, they were entitled to claim priority and that these guidelines were to be kept in mind while absorption of NDS Instructors in the cadre of Physical Education Teachers. The petitioner was absorbed in the State Government on 1.7.1976 and was given the benefit with effect from that date. He could not claim any benefit from the Central Government for the periods prior to the date of his absorption on 1.7.1976. The guidelines issued by the Central Government were not obligatory upon the State Government. It was further submitted that the Kendriya Vidyalaya Sangthan scale were not relevant for NDS Instructors. The Kendriya Vidyalaya Sangthan is an autonomous body. The NDS Instructors absorbed in Delhi were given benefits as per the respective Rules and Regulations of union territory.
In the Tribunal the petitioner had claimed the benefit of pay scale of Rs.440-750/- from 1.1.1973 to the date of his absorption in the State Government on 1.7.1976, and consequential benefits in the State Government.
The Original Application No.20 of 1992 was decided by the Tribunal on 14.8.1992. It was found to be devoid of merits and was dismissed. The review application was also dismissed on 13.11.1992. The petitioner filed Special Leave Petition, which was admitted and decided as Civil Appeal No.9854 of 1995. The Supreme Court found that the communication from the Ministry of Human Resource Development, Government of India dated 7.1.1992 was not noticed by the Tribunal and remanded the matter to be decided afresh for reconsideration in the light of the communication of the Central Government as well as the relevant decisions of the Supreme Court on the point .
In the communication from the Ministry of Human Resource Development, Government of India dated 7.1.1992 addressed to the Director Education (NFC) Government of Uttar 4 Pradesh under whom the applicant was working, it was directed as under:-
".......That the Government of India after due consideration of the case, has decided that Shri Jitendra Nath Jha, employed as PTI at JPS Inter College Mohdi Ganj Lucknow may be granted a scale allowed to the diploma in Physical Education Holders in the State Government's service in the light of the Ministry of Education, Government of India letter No.F.20-3/68-ys IV dated 2.11.1988 (copy enclosed). Shri Jha will be accordingly fitted into the appropriate scale with effect from the date of his absorption in the State's service i.e. 1.7.1976 and all the consequential benefits will be paid to him. Any additional expenditure incurred therein will be borne by the Central Government."
It was submitted before the Supreme Court that Rule 8 of the Rules provides that for the purposes of fixation of pay a graduate with NDS training shall be considered equivalent to diploma holders in Physical Education and as the petitioner is a graduate with NDS Training he became entitled to pay scale available to diploma holders in Physical Education. The DPEd scale w.e.f. January 1st 1973 was Rs.440-750/- and that the applicant, therefore, was entitled to the said pay scale from January, 1973.
The Tribunal considered the method of recruitment of persons to Class-II and III posts under the National Discipline Scheme made under Art.309 of the Constitution of India under National Discipline Scheme known as National Discipline Scheme Instructor (Class-II and III Posts) Recruitment Rules, 1961 notified on 24.2.1961 providing for the name and scale of posts and qualifications for such posts. The name and scale of the posts relevant for the purposes were quoted as follows:-
Revised as on 1.1.61 "(i) Senior N.D.S. Instructor Gr.I Rs.210-320/-
(ii) Senior N.D.S. Instructor Gr. II Rs.150-240/-
(iii) N.D.S. Instructor Gr. I Rs.110-200/-
(iv) N.D.S. Instructor Gr. II Rs.95-155/-
The above scales were revised subsequently w.e.f. 1.1.73 which is as below:
(i) Senior N.D.S. Instructor Gr. I Rs.550-900/-
(ii) Senior N.D.S. Instructor Gr. II Rs.440-750/-
(iii) N.D.S. Instructor Gr. I Rs.330-560/-
(iv) N.D.S. Instructor Gr. II Rs.330-560/-"
So far as qualifications are concerned, the Rules provide as follows:-
The Tribunal, thereafter, found that the diploma from some recognized Physical Training Institution was a desirable qualification applicable to both NDS Instructor Grade-II and NDS Instructor Grade-I. The scales were based on respective essential qualifications and experience and not on desirable qualifications, which only gave a preference in selection over other candidates. Thus the scale of NDS Instructor Grade-I for the essential qualification was matriculation. It was kept lower than the Senior NDS Instructor Grade-II for which essential qualification was Graduate of recognized University. The application was appointed in the year 1963 as NDS Instructor Grade-I in the scale of Rs.110-200/- and continued in the same scale until his absorption in the State service. The Tribunal further found that the cases of all the Instructors, who had opted for transfer were to be examined by NFC Directorate with reference to their suitability and requisite minimum qualification. The instructors found suitable by the Directorate were to be screened by the Committee appointed by the State Government before absorption and after absorption the pay was to be fixed as per their educational qualification. In case the Instructor was Graduate with NDS training, he was to be considered equivalent to diploma holder in Physical Education. Since the applicant was only NDS Instructor Grade-I in the pay scale of Rs.110-200/-, and was paid equivalent to that scale till the date of his absorption i.e. 1.7.1976, he was placed in the State service as equivalent to diploma holder in Physical Education. Prior to absorption the applicant was not entitled to get the revised scale of Rs.440-750/- as the scale was available only to Senior Instructor Grade-II under the NDS, to which the applicant was never promoted. In R.G. Kashikar's case the Karnataka High Court had issued a mandamus directing the Government to extend the benefit of the pay scale from January 1st, 1967 to January 1st, 1973 on the ground of equality under Art.14 of the Constitution of India. The Karnataka High Court 7 passed the order because the pay scales of the Instructors working under the NDS were not considered by the Third Pay Commission on the ground that they were to be transferred to the State Government and the scheme of transfer was in the process of implementation under mutually agreed terms. The Third Pay Commission had not revised the pay scale of Instructors working in NDS. The Supreme Court in SLP arising out of R.G. Kashikar's case held that the Instructors working under NDS continued to be Central Government employees till the process of absorption was completed and that they were, therefore, entitled to be treated as Central Government employees. The order of the Supreme Court was implemented by the Government Order dated 19.6.1986 and thus the pay scale of Rs.110-200/- was revised to Rs.330-560/- w.e.f. 1.1.1973. This benefit was to be given only until the date of absorption in the State service, after which the pay scale was to be fixed by the State Government. The petitioner was given revised pay scale of Rs.330-560/- from 1.1.1973 to 30.6.1976 and after the date of his absorption i.e. on 1.7.1976 his pay was fixed in the State service. There was nothing in the judgment to give the benefit of pay scale, which the absorbed employees were given in the State service prior to the date of absorption and thus in the Office Memorandum dated 7.1.1992 issued by the Ministry of Human Resource Development it was mentioned that the petitioner Shri Jha will be accordingly fitted into the appropriate scale with effect from the date of his absorption in the State service i.e. 1.7.1976.
In National Federation of State NFC (Physical Education) Teachers Association & Ors. Vs. Union of India, Writ Petition No.861 of 1990 under Art.32 of the Constitution of India, the teachers association claimed that the Instructors Grade-I pay scale be given to secondary school teachers and not the grade applicable to primary school teachers. After examining the Kashikar's case the Supreme Court held that there were no two 8 scales, one for primary schools and other for secondary schools. The NDS Instructors Junior Grade-I were recruited for specific purpose in the pay scale of Rs.110-200/- and that there was no mistake about fixing the pay scales. The NDS Instructors did not have the desirable qualification of diploma from recognized Physical Training Institute and thus they could not be given the pay scale of Physical Education teachers of Central Schools.
The Tribunal in its long and reasoned judgment held that the applicant was admittedly appointed as NDS Instructor Grade-I (Rs.110-200) and was never selected to the grade of NDS Instructor Grade-II till his absorption in the State service and thus he was given equivalent scale as available to all other Central Government employees in the grade of Rs.110-200/-.
In the matter of Shri Ram Pratap Yadav Vs. Union of India, Writ Petition NO.1198 of 1987 the Supreme Court found that Shri Ram Pratap Yadav completed his graduation in October, 1968. His qualification along with NDS Training made him equivalent to DPEd degree and his pay was, therefore, directed to be fixed with retrospective effect in PT 1/ DPE Cadre in the State Government and that the liability as per the letter of the Central Government was to be borne by the Central Government. The letter dated 21.6.1991 was applicable only in respect of Shri Ram Pratap Yadav. The Tribunal thus found that both the Kashikar's case and Ram Pratap Yadav's case were not of much help to the petitioner.
The Tribunal also repelled the arguments that even though the applicant was a graduate, he was not entitled to the scale available to Senior NDS Instructor Grade-II prior to his absorption in the State service, until he was promoted to the said post as per Recruitment Rules of 1961. Only after the absorption the applicant was entitled to be fitted into appropriate scale in State service. In the end the Tribunal held that since the order of the Tribunal in O.A. No.156 of 1989, G.N. Jha Vs. Union of India 9 directing that prior to the date of his absorption on 1.7.1976 he was in the service of the Central Government and thus the Central Government and not the State Government has to consider his claim. The order has become final. In the letter dated 7.1.1991 issued prior to the order of the Tribunal dated 15.7.1991 the Ministry of Human Resource Development, Government of India had mentioned that Shri Jha will be accordingly fitted into appropriate scale form the date of his absorption in the State service i.e. 1.7.1976 and all consequential benefits were to be paid to him. The Tribunal finally held that fixation of pay into the appropriate scale with reference to educational qualification vis a vis State service as per the Rule 8 of the Transfer Rules circulated with Memorandum dated 24.12.1965 would be applicable to the applicant only after the date of absorption and not prior to that date.
The petitioner would submit that in the year 1965 the posts in NFC were redesignated and all NSD Instructors were fitted into these redesignated scales according to their educational qualifications. The trained graduate teachers were treated equal to DPEd and Trained Laboratory Teachers as CPEd. In the year 1965 the Central Government had also taken a decision to transfer the NFC Scheme in the control of the State Government and which came into effect on 1.7.1976 absorbing all the Instructors in the State service but that they were not given the benefit of the revised pay scales as it was made applicable to other Central Government employees. The petitioner continued in the same pay scale of Rs.110-200/- and had not received the benefit of revised pay scales in the Central Government. The petitioner served from 1.10.1972 to 30.6.1976 as Central Government employee (NFC Instructor) in the administrative control of the State Government. Prior to 1965 the Trained Graduate Teachers/ DPEd were getting the pay scale of Rs.170-380/- and Trained Matriculate Teachers (CPEd) in the pay scale of Rs.118-225/-. From 1.1.1967, by the 10 orders issued by the Central Government on 16.5.1986, 16.12.1986 and 4.8.1986 all NFC Instructors in the Central Schools were given Trained Matriculate Teachers/CPEd were provided w.e.f. 1.1.1973. The Trained Graduate Teachers of DPEd were placed in the pay scale of Rs.440-750/- and Trained Matriculate Teachers/CPEd were placed in the pay scale of Rs.330-560, on the basis of Central Government orders dated 24.12.1965 and 2.11.1968.
The petitioner further submits that w.e.f. 1.1.1967 to 1.1.1973 the petitioner was also entitled to Senior Grade-II NFC Instructors. He was entitled to be paid salary in the pay scale of Rs.440-750, w.e.f. 1.1.1967 to 1.1.1973 instead of Rs.330-560.
The Tribunal discussed the relevant Rules, Government Orders and the ratio of the Supreme Court cases in detail but that the reasoning given by the Tribunal for dismissing the writ petition, is that since the petitioner was appointed in the year 1963 as NDS Instructor Grade-I in the scale of Rs.110-200/- he remained in the said scale till the date of his absorption, and thus he was not entitled to the revised pay scale of Rs.440-750/-, which was applicable to the Instructor Grade-II by the Central Government and would be absorbed in the State Government in the revised pay scale applicable to the scale of NDS Instructor Grade-I of Rs.110-200.
The Supreme Court had remanded the matter to the Tribunal with directions to consider the effect of the communication of the Ministry of Human Resource Development, Government of India dated 7.1.1992, addressed to the Director of Education (NFC), Government of U.P., on the representation of the petitioner.
The Tribunal was required to find the appropriate scale in which the petitioner had to be fitted with effect from the date of his absorption in the State service. It fell into error in holding that since the petitioner was appointed as NDS Instructor Grade-I, 11 he would be fitted in the same scale at the time of his absorption in the State Government.
The petitioner was a graduate and was working as NDS Instructor Grade-I in the pay scale of Rs.110-200/- revised on 1.1.1961, and later revised w.e.f. 1.1.1973 to Rs.330-560. The applicability of the revision of the pay scales by the Third Pay Commission was still under consideration at the time of absorption in the State Government.
In Ram Pratap Yadav's case (Writ Petition No.1198 of 1987 decided on August 16th, 1991) the Supreme Court was concerned with the guidelines issued by the Central Government in 1968. The Ministry of Human Resource Development in dealing with Ram Pratap Yadav's case had directed that since Shri Ram Prasad Yadav has completed his graduation in October, 1968, his qualification along with NDS training undergone by him is equivalent to DPEd degree and his pay, therefore, may be refixed with retrospective effect in PT 1/ DPE cadre of the State Government on account of his being equivalent to DPED holders and the additional expenditure in this regard will be borne by the Central Government. The writ petition was allowed and the petitioner was directed to be given the benefits contained in the letter.
The petitioner was also similarly situate, and that directions issued by the Central Government in the letter dated 7.1.1992 issued by Human Resource Development have to be read in the same context. The petitioner was also a graduate and had completed NDS training, which was equivalent to DPEd degree. At the time of his absorption, the post held by him as well as his qualifications, which were equivalent to DPEd degree were required to be considered for absorption. The petitioner was also, as contemplated in the Government scheme of 1968, as in the case of Ram Pratap Yadav was required to be fitted in DPEd cadre and the liability was to be borne by the Central Government. We are, 12 therefore, of the opinion that the petitioner was entitled to the pay scale of Rs.440-750/- w.e.f. 1.1.1973 to the date of his absorption in the State Government i.e. 1.7.1976 and that the liability of the payment is to be borne by the Central Government.
The writ petition is allowed. The judgment of the CAT dated 21.10.1997 in O.A. No.20 of 1992 and the order dated 19.11.1997 rejecting the Review Petition No.31 of 1997 are set aside. The claim petition filed by the petitioner is allowed only to the extent that the petitioner will be entitled to the pay scale of Rs.440-750/- w.e.f. 1.1.1973 to 30.6.1976 from the respondent No.2 and all consequential benefits. The order shall be carried out and all consequential benefits worked out and paid within three months of the communication of the order to the competent authority.
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