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PETITIONER: CHAMAN LAL & ORS. ETC. ETC.

       Vs.

RESPONDENT: STATE OF HARYANA ETC. ETC.

DATE OF JUDGMENT13/04/1987

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) DUTT, M.M. (J)

CITATION:  1987 AIR 1621            1987 SCR  (2) 923  1987 SCC  (3) 113        JT 1987 (2)   135  1987 SCALE  (1)761  CITATOR INFO :  RF         1988 SC 892  (13)

ACT:     Haryana  Educational Service--Teacher--Pay Scale  linked to qualifications--Basic Trained Teacher acquiring B.Ed/B.T. qualification subsequent to joining service--Entitlement  to higher pay scale-Admissibility of.

HEADNOTE:     In  the  Haryana  Educational Service,  there  were  two categories  of  teachers  described  as  Masters  and  Basic Trained Teachers. 25% of the posts of Masters were  reserved for  promotion  from the posts of  Basic  Trained  teachers. Masters could be promoted to higher posts. By an order dated July  23,  1957 there was a revision of the scales  of  pay. Teachers  were placed according to their  qualifications  in two  categories, Catetogy A consisting of B.A, B.Com,  B.Sc. (Agriculure)  and B.T., and Category ’B’ consisting of  four groups  of  whom  Group I was  Matric  with  basic  training (including  J.B.T.).  The  scale of pay was  linked  to  the qualification and for category ’A’ it was Rs.110-250 with  a higher start for M.A. and M.Sc. and for Category ’B’ it  was Lower Rs.60-120, Middle Rs.120-175 and Upper Rs.140-200.     While  Kripal  Singh Bhatia’s case and  other  petitions were  pending,  the Government of Haryana  issued  an  order further  revising the scales of pay of teachers  working  in Government  schools in 1968 consequent on the acceptance  of the  recommendations of the Kothari Commission  with  effect from December 1, 1967. There was, however, no departure from the  principle  of the 1957 order,  that  trained  graduates would be entitled to the higher scales of pay.     On  September  5, 1979, the Government issued  an  order granting Masters grade to unadjusted J.B.T. teachers who had passed B.A., B.Ed. subject to certain conditions. This order was challenged before the High Court by ’trained  graduates’ i.e.  those who possessed the B.Ed. or B.T. degree in  addi- tion  to B.A. degree. They did not possess this degree  ini- tially  but acquired it subsequent to their joining  service which  was between 1953 and 1973. The High Court  held  that those teachers who had acquired the B.T. or B.Ed. qualifica- tion  subsequent to December 1, 1967 (the date on which  the

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1968 order came into force) 924 and before September 5, 1979 would be entitled to the Higher grade  but with effect from September 5, 1979 only and  that those who acquired the qualification subsequent to September 5,  1979 would not be entitled to the higher grade. It  fur- ther held that the 1968 order did away with the principle of the 1957 order, that teachers acquiring B.T. or B.Ed. quali- fication should get the higher grade, and that a  concession was  shown  in 1979 enabling the teachers who  acquired  the B.T. or B.Ed. qualification between 1968 and 1969 to get the higher scale from 1979. Allowing the appeal, this Court,     HELD: 1. From 1957 to 1980, it was always accepted  that teachers who acquired the B.T. or B.Ed. qualification  would be  entitled  to  the higher scale of pay as  soon  as  they acquired  the qualification irrespective of the  dates  when they were adjusted against the posts of Masters. The adjust- ment  against  the  posts of Masters was  relevant  for  the purpose  of  seniority in the post of Masters  and  for  the further  purpose of promotion from that post. So far as  the scale  of  pay  was  concerned  irrespective  of  adjustment against  the  post  of Masters, a teacher  was  always  held entitled  to  the higher scale of pay from the date  of  the acquisition of the B.T. or B.Ed. qualification. [930E-G]     2.  It is plain that the High Court has ignored all  the events that took place between 1957 and 1980. The  principle that  pay should be linked to qualification was accepted  by the Punjab Government in 1957 and when Kirpal Singh Bhatia’s case  was argued in the High Court and this Court there  was not  the slightest whisper that the principle had  been  de- parted  from in the 1968 order. In fact the 1968  order  ex- pressly stated that the Government had accepted the  Kothari Commission’s  report in regard to the scales of pay and  the main feature of the report with regard to pay was the  link- ing  of pay to qualification. The High Court was not  justi- fied in departing from rule which had been well  established and  consistently acted upon, it was not open to  the  State Government  to  act  upon the principle in  some  cases  and depart from it in other cases. [931E-G; 932B]     3. The 1968 order must be read in the light of the  1957 order  and  the report of the Kothari Commission  which  was accepted.  If so read there could be no doubt that the  Gov- ernment  never intended to retract from the  principle  that teachers acquiring the B.T. or B.Ed. qualification would  be entitled to the higher grade with effect from the respective dates  of their acquiring the qualification. The 1979  order was  indeed superfluous. There was no need for  any  special sanction for the grant of 925 Master’s grade to unadjusted J.B.T. teachers, who had passed B.A.,  B.Ed.  That was already the position  which  obtained both  as  a result of 1957 and 1968 orders and  the  several judgments of the Court. [931G-H; 932A-B]     (The  respondents  directed  to give  the  higher  grade admissible to Masters to all the teachers who have  acquired the B.T/B.Ed. qualification with effect from the  respective dates of their acquiring the qualification).     State  of  Punjab and another v. Kirpal Singh  Bhatia  & Ors., [1976] 1 SCR 529, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION:Civil Appeal No.  1371  of

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1980 ETC. & ETC.     From  the  Judgment  and Order dated  29.8.1978  of  the Punjab and Haryana High Court in C.W.P. No. 1220/1978. Pankaj Kalra for the Petitioners.     V.C.  Mahajan, C.V. Subba Rao, I.S. Goel, and  N.S.  Das Bahl for the respondents. The Judgment of the Court was delivered by     CHINNAPPA  REDDY, J. The appellants in the Civil  Appeal and  the petitioners in the Writ Petitions are all  ’trained Graduates’, that is to say, all of them possess the B.Ed. or B.T. degree in addition to the B.A. degree. They are  teach- ers in Government schools in the State of Haryana. They  did not possess the B.Ed. or B.T. degree when they joined  serv- ice initially. They acquired the B.Ed. or B.T. degree quali- fication  subsequent  to  their joining  service  which  was between  the years 1953 and 1973. Some of them acquired  the B.Ed. or B.T. degree qualification before September 5,  1979 and  in some cases after September, 5, 1979. The  importance of  the  date September 5, 1979 will become  evident  as  we proceed  to state the facts. It appears that in the  Haryana Educational  Service, there were two categories of  teachers described as Masters and Basic Trained teachers. 25% of  the posts of Masters were reserved for promotion from the  posts of  Basic  Trained teachers. Masters could  be  promoted  to higher  posts. There appears to have been some  dissatisfac- tion  regarding  the scales of pay for teachers  and  so  in 1957, there was a revision of the scales of pay by an  order dated July 23, 1957. All teachers, according to their quali- fications, 926 were placed in two broad categories, category ’A’ consisting of B.A/ B.SC./B.Com/B.Sc (Agriculture) and B.T., and Catego- ry  ’B’ consisting of 4 groups of whom Group 1 was  "Matrics with  basic training (including JBT)". The Government  order mentioned the scales of pay as:                     "Category ’A’: Rs.110-8-190/10-250  with               a higher start for M.A. & M.Sc. As at present.               The  existence  percentage of posts  fixed  by               Government  for scales of  Rs.110-8-190/10-250               and Rs.250-300 should remain unchanged at  35%               and 15% respectively.                     Category   ’B’:   Lower    Rs.60-4-80/5-               120    Middle Rs.120-5-175.  Upper  Rs.140-10-               200.                         With a view to providing incentives,               it  has  been decided that  posts  falling  in               these groups should be in the following as:               Group I: Lower Scale 85%               Middle Scale 15%               15% of teachers in this group should straight-               away  be  promoted to the middle  scale  by  a               selection based on seniority and merits, while               the rest should be given the lower scale." What  is important to be noticed here is that the  scale  of pay  was linked to the qualification. A question was  raised whether  teachers who started as Basic Trained teachers  and later  acquired  the B.Ed. or B.T.  qualification,  but  who could  not  be adjusted against posts of  Masters  would  be entitled to the grade of Rs.110-250? Answering a query,  the Secretary  of  the Department of  Education  replied,  "Your presumption  that  teachers holding B.A.,  B.T./B.A.,  B.Ed. qualifications would henceforth be placed in Category ’A’ is confirmed".  The question also came to be  considered  judi- cially,  first  by the High Court of Punjab  &  Haryana  and later  by  the Supreme Court in State of  Punjab  v.  Kirpal

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Singh Bhatia, [1976] 1 SCR 529. The Supreme Court, affirming the judgment of the High Court of Punjab & Haryana, held  as follows:                        "The  High Court rightly referred  to               the letter of the Secretary of the  Department               dated   24th  September,  1957   that-teachers               holding B.A., B.T./B.A., B.Ed. qualification               927               would  henceforth be placed in  Category  ’A’.               The High Court tightly came to the  conclusion               that  the scale of pay of Rs.110-250 Would  be               effective either from the date when the teach-               ers would pass the examination of Bachelor  of               Teaching  or its equivalent or 1st  May,  1957               whichever is latter." While the writ petitions were pending in the High Court, the Government  of  Haryana issued an  order  directing  further revision of the scales of pay of teachers working in Govern- ment  schools in 1960. It was expressly stated in the  order that the scales of pay were being revised consequent on  the acceptance  of the recommendations of the  "Kothati  Commis- sion". One of the questions which the Kothari Commission had considered  in great detail was the scales of pay of  teach- ers. The Commission had strongly expressed the view that the scales  of  pay should be linked to  educational  qualifica- tions.  In  paragraph 3.15 of their report,  the  Commission said:               "3.15 Our first proposal is that the  existing               multiplicity  of scales of pay should  be  re-               duced  and  that there should  be  three  main               scales of pay for school teachers:                     (1) A scale of pay for teachers who have               completed the secondary course and are trained               and  who would form the vast bulk of  teachers               at the primary stage;                     (2) A scale of pay for trained graduates               who would form a small proportion of  teachers               at  the  primary stage but the  vast  bulk  of               teachers at the lower secondary stage;                     (3)  A  scale of pay for  teachers  with               post-graduate qualifications who would form  a               small  proportion  of teachers  at  the  lower               secondary  stage, but the bulk of teachers  at               the higher secondary stage.                         Incentives  to teachers  of  special               subjects or to teachers with additional quali-               fications can be given in the form of  advance               increments or special allowance. The scales of               pay  of  special teachers (i.e.  for  drawing,               craft,  physical education, etc.) can also  be               related  to these three basic scales  in  some               suitable manner. The scales of pay for librar-               ians  should  also  be related  to  those  for               teachers in a suitable manner."               928               Again in paragraph 3.16(3), they said:                         "Our attention has been drawn to  an               anomaly  which  must be removed  as  early  as               possible.  Several States restrict, on  finan-               cial grounds, the number of posts which  carry               the  scale of trained teachers who  have  com-               pleted  the secondary school course.  The  re-               maining  posts are usually assigned  to  lower               scales  of  pay sanctioned for  teachers  with               lower  qualifications. Not infrequently,  per-

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             sons  with lower qualifications are  recruited               to these posts even when qualified and trained               teachers  are available. This is  bad  enough;               but what is worse, even trained and  qualified               teachers  who are recruited against the  posts               are  given, not the salaries of qualified  and               trained  teachers to which they  are  entitled               but the lower salaries meant for these  posts.               As  the completion of secondary school  course               and  two  years of  professional  trained  are               accepted  as the minimum qualification  for  a               primary  teacher,  this  practice  should   be               abandoned as early as possible and the princi-               ple adopted that every trained teacher who has               completed the secondary school course received               the scale of pay sanctioned for such teachers.               This  will remove an injustice now being  done               to a large number of teachers in service,  and               create  an  incentive for unqualified  or  un-               trained  teachers  to  become  qualified   and               trained."               In Paragraph 3.17(3), they said:               "The scales of pay of trained graduate  teach-               ers should have a minimum of Rs.220 rising  to               Rs.400  in a period of about 20  years.  There               should  be a selection grade which would  rise               to  Rs.500  and be available to about  15  per               cent of the cadre." We  mentioned earlier that even in 1957, the  Government  of Punjab  (which  at that time included Haryana)  had  already accepted  the principle of linking pay to  qualification  as evident from their order dated July 23, 1957. Accepting  the Kothari  Commission’s  recommendations,  they  revised   the scales  of  pay  with effect from December 1,  1967  in  the following manner: 929 "Sr. Category of teachers           Revised Grade No. ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ 1.  J.B.T./J.S.T/J.A.V.C-& V       i) Rs.125-5-150/5-250     teachers drawing masters.      (for 85% of the cadre)     Tailoring Mistress Art &       ii) Rs.250-10(for 15% of     Craft teachers, Demestic       the cadre).     Science Mustresses & Shashtries. N.B.  The untrained teachers with High  Secondary/Matricula- tion  qualifications  will draw the starting of  Rs.100  per mensem  and  they will be integrated in the regular  pay  of scales Only after they attain necessary provisional qualifi- cation.                                     i) (Rs.220-8-300/10-400                                     (for 85% of the cadre)    2. Masters/Mistresses         ii) Rs.400-20-500    (Trained Graduates)           (for 15% of the cadre) N.B. i) The 1st and 2nd class Graduates will be entitled  to draw one advance increment in addition. (ii)  The untrained Graduates will be allowed  the  starting salary  of  Rs.200 per mensem and will be entitled  for  the regular  scales of pay only after attaining  the  prescribed professional training." Though  the 1968 order had come into force with effect  from December  1,  1967, it was not suggested either  before  the High  Court  or before the Supreme Court when  Kirpal  Singh Bhatia’s  case was decided that the 1968 order had made  any departure from the principle of the 1957 order that  trained Graduates would be entitled to the higher scales of pay. The

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question  however was raised in Civil Writ No. 2505 of  1972 in  the High Court of Punjab and Haryana and it was  decided in  that case that teachers who did not  originally  possess the B.T./B.Ed. qualification but who acquired such  qualifi- cation on various dates between 1960 and 1970 were  entitled to  the higher scale of pay of Rs.220-300/ 400  with  effect from the respective dates of their acquiring the  qualifica- tion  irrespective of the dates on which they were  adjusted against the posts of Masters. After the judgment of the High Court was pronounced consequential orders were issued by the Government on November 20, 1973. The question arose again in Civil Writ No. 1991 of 930 1976  and other cases when it was disposed of by a  Division Bench  of the High Court of Punjab and Haryana  on  November 1980 with the following order:                         "The learned counsel for the parties               are  agreed that the matter in this  and  writ               petitions  Nos.  1991 of 1976, 3829  of  1975,               4449 of 1974, 5227 of 1975, 5539 of 1975, 2247               of  1973, 7726 of 1976 and 7813 is covered  by               the decision of the Supreme Court reported  as               State  of  Punjab and Others v.  Kirpal  Singh               Bhatia  and Others, [1975] 2 Service  Law  Re-               porter  621 and these petitioners have  to  be               allowed to in terms of the aforesaid  judgment               of the Supreme Court.                         The  learned Advocate General,  Har-               yana  states  that the  benefit  which  flowed               because  of the Judgment of the Supreme  Court               in Kirpal Singh Bhatia’s case (supra) has been               given  to the petitioners in all  these  peti-               tions. Mr. J.L. Gupta learned counsel for  the               petitioners, shows ignorance about this  fact.               Whatever be the circumstances, the petitioners               are  allowed  in view of the judgment  of  the               Supreme  Court in Kirpal Singh  Bhatia’s  case               (supra) with no order as to costs." It is thus seen that from 1957 to 1980 whenever the question arose, it was always accepted that teachers who acquired the B.T. or B.Ed. qualification would be entitled to the  higher scale  of  pay as soon as they  acquired  the  qualification irrespective  of the dates when they were  adjusted  against the  posts of Masters. The adjustment against the  posts  of Masters  was  relevant for the purpose of seniority  in  the posts  of Masters and for the further purpose  of  promotion from  that post. So far as the scale of pay  was  concerned, irrespective  of  adjustment against the post of  Master,  a teacher  was always held to be entitled to the higher  scale of  pay from the date of the acquisition of the B.T.  or  B. Ed. qualification.     On  September 5, 1979, the Government of Haryana  issued an order in the following words:               "Sanction of the Governor of Haryana is hereby               accorded  w.e.f.  5.9.1979  of  the  grant  of               Masters  grade to unadjusted  J.B.T.  teachers               who  have  passed B.A.,B.Ed., subject  to  the               following conditions:-               931                     (i) That the expenditure involved  would               be  met from the savings of the  current  year               revised sanctioned estimates.                     (ii)  That  these teachers will  not  be               allowed any seniority in the cadre of masters.               (iii)  That it will not form a  precedent  for

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             future.                    (iv) That the award of Master’s grade  to               the  concerned teachers would be  personal  to               them." This order of the Government is now sought to be interpreted and  it has been so interpreted by the High Court of  Punjab and Haryana in the judgment under appeal that those teachers who had acquired the B.T. or B.Ed. qualification  subsequent to  December 1, 1967 (the date on which the 1968 order  came into  force) and before September 5, 1979 would be  entitled to  the higher grade but with effect from September 5,  1979 only  and that those who acquired the  qualification  subse- quent  to  September 5, 1979 would not be  entitled  to  the higher  grade. According to the judgment of the  High  Court under Appeal, the 1968 order did away with the principle  of the 1957 order that teachers acquiring B.T. or B.Ed.  quali- fication  should get the higher grade and that a  concession was  shown  in 1979 enabling the teachers who  acquired  the B.T.  or B.Ed. qualification  between 1968 and 1979  to  get the  higher scale from 1979. In our opinion this is  plainly to  ignore all the events that took place between  1957  and 1980. The principle that pay should be linked to  qualifica- tion was accepted by the Punjab Government in 1957 and  when Kirpal Singh Bhatia’s case was argued in the High Court  and in  the  Supreme Court there was not the  slightest  whisper that the principle had been departed from in the 1968 order. In fact the 1968 order expressly stated that the  Government had  accepted the Kothari Commission’s report in  regard  to scale  of pay was the linking of pay to qualification.  That was apparently the reason why no such argument was  advanced in Kirpal Singh Bhatia’s case. Even subsequently when sever- al  writ  petitions were disposed of by the  High  Court  of Punjab and Haryana and when the Government issued consequen- tial orders, it was never suggested that the 1968 order  was a retraction from the principle of qualification linked pay. The  1968 order must be read in the light of the 1957  order and the report of the Kethari Commission which was accepted. If  so read there can be no doubt that the Government  never intended to retract from the principle that teachers acquir- ing the B.T. or B.Ed. would be entitled to the higher  grade with effect from the respective dates of their acquiring 932 that  qualification. The 1979 order was indeed  superfluous. There was no need for any special sanction for the grant  of Master’s  grade  to unadjusted JBT teachers who  had  passed B.A.,  B.Ed.  That was already the position  which  obtained both as a result of the 1957 and 1958 orders and the several judgments of the Court. We do not think that the Punjab  and Haryana High Court was justified in departing from the  rule in the judgment under appeal. The rule had been well  estab- lished  and consistently acted upon. Nor was it open to  the Government  to  act  upon the principle in  some  cases  and depart  from it in other cases. In the result we  allow  the appeal and the Writ Petitions and direct the respondents  to give  the  higher  grade admissible to Masters  to  all  the teachers who have acquired the B.T./B.Ed. qualification with effect  from  the respective dates of  their  acquiring  the qualification. The appellants and the petitioners are  enti- tled to their costs. N.P.V.                                                Appeal allowed. 933