Court No. - 58
Case :- WRIT - A No. - 27171 of 2018 Petitioner :- Ram Badan Rai Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Kushmondeya Shahi,Jitendra Prasad Counsel for Respondent :- C.S.C.
Hon'ble Ashwani Kumar Mishra,J.
1. This writ petition is directed against an order passed by the Joint Director of Education (Secondary), Gorakhpur Mandal, Gorakhpur, dated 7.4.2018, whereby claim of petitioner for payment of selection grade has been rejected on the ground that such amount is not due and payable in terms of the Government Order dated 8th March, 1995. Petitioner's claim for consequential revision of his pension has also been rejected, accordingly.
2. It appears that petitioner was the senior most Assistant Teacher in the institution and was allowed to officiate on the post of Principal, which fell vacant on 30th June, 1990. Such ad hoc promotion was approved by the District Inspector of Schools on 26th December, 1990. The claim of petitioner for regularization was, however, not considered till the petitioner attained the age of superannuation in the year 2012. Pursuant to an order passed by this Court, the claim of petitioner for regularization was examined, and his services were regularized on 16.2.2017 with reference to the applicable provisions of Section 33-B of the U.P. Secondary Education Services Selection Board Act, 1982. It is thereafter that petitioner made a claim for grant of selection grade and the same has been rejected on the ground that petitioner has not completed 10 years service after his services got regularized under the orders of the Deputy Director. It may, however, be noticed that the District Inspector of Schools had granted benefit of selection grade to the petitioner on 23.1.2018, but a contrary view has been taken by the Deputy Director.
3. Learned counsel for the petitioner places reliance upon the following order passed by this Court in Writ Petition No.24267 of 2018 (Smt. Mithlesh Kumari Vs. District Inspector of Schools, Bijnor and others) on 16.11.2018:-
"Petitioner is aggrieved by an order 27.7.2018, contained in Annexure-6 to the writ petition, whereby selection grade has been accorded to petitioner on the post of Lecturer with effect from the date his services got regularized i.e. 22.3.2016.
The order is assailed on the ground that petitioner was initially appointed in the year 1998 and though his services were regularized in March, 2016, but the adhoc continuance of petitioner on the post of Lecturer is liable to be taken note of for the purposes of grant of selection grade to him.
Learned counsel for the petitioner places reliance upon a judgment of this Court in Suman Bhatnagar vs. State of U.P. and others reported in 2014 ADJ (7) 19, in which the issue has been examined with reference to the provisions contained in the government order itself.
The entitlement of petitioner to receive selection grade flows from a govt. order dated 20.12.2001. Relevant provision of the aforesaid govt. order reads as under:-
“¼[k½ ek/;fed f'k{kk ¼1½ ek/;fed f'k{k.k laLFkkvksa ds f'k{kdksa@izoDrkvksa dks lk/kkj.k osrueku esa 10 o"kZ larks"ktud lsok iw.kZ djus ij p;u osrueku Lohd`r fd;k tk;sxk rFkk p;u osrueku esa 12 o"kZ dh larks"ktud lsok iw.kZ djus ij izksUufr osrueku Lohd`r fd;k tk;sxkA”
This Court in Suman Bhatnagar (supra) has been pleased to consider import of term 'satisfactory services'. It is held that once the services of petitioner have been regularized, later in point of time, the previous satisfactory services cannot be ignored altogether. The observation made in para 8 & 9 of the judgment in Suman Bhatnagar (supra) is apposite for the present purposes and is reproduced hereinafter:-
"8. The suggestion of the learned Standing Counsel that in effect the phrase continuous regular service means substantive cannot be accepted. His further argument to the effect that the words suggest surplus age also cannot be countenanced as unless and until it can be shown that the words were used loosely, the legislature cannot be termed to have acted in its wisdom for having used words, which it intended to mean otherwise. Surplus age cannot be inferred when the phrase is emphatic and is not hedged by any confusion. At least the Court in such a situation cannot interpret otherwise.
The other reason to conclude in the manner aforesaid is that the process of Regularization take; a long time and is usually determined after a long passage of time making it almost uncertain. This procedure, therefore, will be presumed to be in the knowledge of the Rule framing authority, which has deliberately not used the words substantive in Rule 14 in such circumstances. Regularization of the services of the petitioner does not make his earlier services irregular. The adhoc tenure attains the status of a substantive tenure which process is termed as Regularization. Regularization means in simple language to put in order and to bring about in accordance with Rules. An appointment, which is adhoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to join the main stream cadre for the purposes of viability what is required is continuity in service. The services of the petitioner continued un-interrupted even on adhoc basis and where subsequently regularized.
9. The words are "continuous regular service". As already explained hereinabove, the petitioner fulfils the aforesaid and, therefore, the impugned order is erroneous in law and is liable to be set aside. The order dated 7.8.2004 is quashed. This Court is supported in its view by the decision in the case of Committee of Management v. Director of Education and others, Civil Misc. Writ Petition No.22391 of 1999, decided on 27.8.1999; (2001) 1 UPLBEC 46 (para 11)."
Learned counsel for the petitioner places reliance upon another judgment of this Court in Shankar Dayal Singh and others vs. Director of Education (Basic) and others reported in 1997 (1) AWC 339, in which following observations have been made in para 6:-
"6. In my opinion, the letter of the Director of Education dated 13.7.1992 as well as the consequential letter of the Basic Shiksha Adhikari dated 10.9.1992 are wholly arbitrary and deserve to be set aside. It is evidence from the letter of Director of Education dated 13.7.1992 that all the teachers and staff of the institution will be placed on the minimum of the pay scale with effect from the date on which the institution has been brought within the purview of the Payment of Salary Act, i.e. from March, 1991. If this is permitted, it will mean that a teacher who has been working from say 1970 will be paid the same salary as a teacher who was appointed in say 1990 since both will be placed on the minimum of the pay scale. Thus, the senior teachers will be placed at par with the Junior most teacher regarding salary. This is clearly arbitrary and violative of Article 14 of the Constitution. It is well settled that discrimination can be done both by treating equals unequally or by treating unequals equally. In the present case, unequals have been treated as equals, because senior teachers are being treated at par as junior teachers with regard to payment of salary, and this is clearly violative of Article 14 of the Constitution. Hence, I set aside the impugned orders dated 13.7.1992 and 10.9.1992 and direct that the petitioners will be paid salary on the basis of the fixation of pay made earlier to the impugned orders and they will be given full benefit of seniority regarding salary also."
From what has been observed above, this Court finds that the satisfactory services rendered by the petitioner prior to his regularization can not be excluded for the purposes of grant of benefit of selection grade.
Learned Standing Counsel has not placed any material, which may persuade this Court to take a different view in the matter. It is otherwise not shown that the aforesaid judgments have been interfered with by any higher forum.
In view of what has been observed by this Court in the aforesaid judgments, this writ petition succeeds and is allowed. Order dated 27.7.2018 stands quashed insofar as the benefit of selection grade is restricted to petitioner from the date his services have been regularized. A direction is issued to the concerned Inspector to take a fresh decision in light of the observations made above and the period of satisfactory services prior to his confirmation would not be excluded for the purposes of grant of benefit of selection grade. Petitioner's claim for grant of GPF and other retiral benefits shall also be dealt with by the authority concerned, in accordance with law. The required determination would be made within a period of three months from the date of presentation of certified copy of this order."
Submission is that the satisfactory services of petitioner cannot be restricted to the period of working after the regularization alone, in view of the law laid down by this Court in Smt. Mithlesh Kumari (supra). The satisfactory services rendered prior to regularization would have to be considered for the purposes of grant of selection grade.
4. Learned Standing Counsel does not dispute the legal proposition and comes up with the prayer to permit the authority concerned to re-visit the issue.
5. In the facts and circumstances, noticed above, the order impugned cannot be sustained, in view of the law laid down by this Court in Smt. Mithlesh Kumari (supra). Order dated 7.4.2018 passed by the Deputy Director of Education, Gorakhpur Region, Gorakhpur is, accordingly, quashed. The authority concerned is directed to take a fresh decision, keeping in view the law laid down in Smt. Mithlesh Kumari (supra), as per which the period of 10 years satisfactory services cannot be restricted only to the period of working after regularization, and such working before regularization would also be considered for grant of selection grade. The required decision would be taken, within a period of three months from the date of presentation of certified copy of this order.
Order Date :- 19.12.2018 Anil