STATE OF HARYANA AND ORS.versusSUMITRA DEVI AND ORS.

                    STATE OF HARYANA AND ORS.                                 A
                                     V.

                       SUMITRA DEVI AND ORS.

                          NOVEMBER 6, 2003

                 [V.N. KHARE, CJ. AND S.B. SINHA, J.]                         B


      Service Law :

        Pay Scale-JBT teachers in State of Haryana-Claim for higher pay
scale on acquiring higher qualification-Government order dated 9. 3.1990 C
retracting from earlier principle and issuing a clarification that teachers to be
paid scale ofpay of the post to which they are appointed and mere possession/
acquiring higher qualification will not entitle them automatically to claim
higher pay scale-JBT teachers in State of Haryana having B.Ed.18. T.
qualification prior to their appointment as JBT teachers challenging the said D
Government Order-Held, it is not a case where petitioners acquired higher
qualification prior to 9.3.1990 while in service as teachers or masters-Circular
dated 9.3.1990 clearly states that a higher scale ofpay would not be admissible
to them despite holding a higher qualification having been appointed on a
lower post-Petitioners already had higher qualification prior to their
appointment as JBT teachers, and as such were not entitled to higher scale E
ofp~upreme Court also in its earlier decisions has held that even holders
of such offices would not automatically be entitled, on acquisition of a higher
qualification, to higher scale of pay-Besides, an order contrary to a statute
or Rules cannot be passed under Article 142 of the Constitution-Composite
Punjab Government Finance Department Circular No. 5056-FR-11157 dated F
23. 7. 1957-Haryana Government order dated 9.3.1990-Constitution of
India-Article 142.

      State of Haryana and Anr. v. Kamal Singh Saharwat and Ors., (19991
8 SCC 44 and Wazir Singh v. State of Haryana, (19951 Supp. 3 SCC 697,
relied on.                                                                    G
      Rattan Singh and Ors. v. State of Haryana, (19941 3 Recent Service
Judgment 220 and Chaman Lal v. State of Haryana, [19871 3 SCC 11,
referred to.

                                    351                                       H
    352                     SUPREME COURT REPORTS (2003] SUPP. 5 S.C.R.

A         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4861 of 1998.

         From the Judgment and Order dated 13.1.97 of the Patna High Court
    in C.W.P.No. 16208 of 1996.

          Neeraj Kumar Jain and Ms. Kavita Wadia for the Appellants.
B
         Alok Sangwan, Dr. Sushi! Balwada, Anil Hooda, Dr.G.S. Sangwan and
    Mrs. Santosh Singh for the Respondents.

          The following Order of the Court was delivered :

C         The respondents herein were appointed on adhoc basis as JBT teachers
    on various dated in the year 1982-1983 in the school run by the State of
    Haryana. Their qualification is JBT and Prabhakar, which they acquired prior
    to joining as JBT teacher. In the year 1957, the State of Punjab issued a
    Circular on 23rd July, 1957 directing that higher pay scale shall be granted.
    to a particular class of teachers on acquiring the particular educational
D   qualification. It is alleged that this Circular was made applicable to the State
    of Haryana also. Subsequently, on 5th September, 1979, State of Haryana
    issued an Order which provided for the grant of higher pay scale on acquisition
    of higher qualification which was superseded by Government Order dated
    9th March, 1990 which runs as follows:
E           "8. In the present revision of pay scale of government employees
            teaching personnel of the Education Department (hereinafter called
            the 'policy of the Government' in unequivocal tenns the Government
            have expressed their intention to retract from the earlier principle that
            teachers acquiring the B.T. or B.Ed degree would be entitled to the
F           higher grade with effect from the respective dates of their acquiring
            that qualification. Relevant portions :n the policy of Government dated
            9.3.1990 read as follows:

                 "I am directed to refer to composite Punjab Government Finance
            Department Circular No. 5056-FR-l l/57 dated 23.7.1957 on the
G           subject noted above, which contains the details regarding the revision
            of the pay scales of various categories of subordinate services
            (including teachers) done on the recommendations made by the Pay
            Revisions Committee, then appointed to examine this matter. While
            evolving revised pay scale in respect of different categories of teachers
            in the Education Department, in para 3 of the above-mentioned circular
H
                   STATE v. SUMITRADEVI                            353
two broad categories namely, category A and category B of teachers         A
were mentioned, inter a/ia laying down the requirements of academic
qualifications in their cases. It would not have been intended by the
Government that on their acquisition of high academic qualification,
various categories of teachers in the lower grades shall automatically
be placed in the different higher grade commensurate with their            B
academic qualification. Normally, pay scales of various categories of
posts in any Department are sanctioned keeping in view the minimum
qualifications required for each category of posts, besides the duties
prescribed for them. Similarly, the teaching posts are sanctioned for
various educational institutions keeping in view the subjects and
classes, the incumbents of these posts are required to teach and for       C
that specific qualifications are prescribed in the service rule as well
as at the time of recruitment. For example, if a B.A., B. Ed. pass
candidate with the qualifications of Matric JBT also applied for the
post of Matric JBT and is taken into service on the basis of higher
qualification, he/she cannot claim the grade of Master/Mistress, but
will get the sanctioned scale of pay of teacher meant for Matric JBT.      D
Similarly, if a Matric JBT teacher improves his qualification during
the course of service and acquire degree of B.A., B.Ed or of language
teacher i.e. O.T. Giani or Prabhakar, he cannot claim the scale of
Master i.e. B.A., B.Ed or of language ·teacher unless he is appointed
as Master against the post of Master and language teacher against the      E
post of language teacher for which the minimum qualifications are
B.A., B.Ed and O.T. (Giani or Prabhakar) respectively.

2. As the instructions contained in paragraph 3 of the above-
mentioned letter dated 23. 7 .1957 did not bring out the above-
mentioned intentions of the Government in unambiguous terms, it            F
has resulted in different interpretations i.e. automatic grant of higher
scales of pay on the basis of qualifications irrespective of number of
posts available in the Department in that category..... it was never the
intention of the State Government to undertake the continuing heavy
financial burden that has devolved on it because of the faculty framing
of the above - mentioned instructions.                                     G
(3 to 5 omitted)

6. In order to remove the confusion being created by misconstruing
the intention of th.e Government the whole matter has been
reconsidered by the State Government. As a result of the                   H
    354                     SUPREME COURT REPORTS (2003) SUPP. 5 S.C.R.

A           reconsideration, the Governor of Haryana is pleased to clarify that
            the teachers of the Education Department are not entitled to be placed
            in the higher scales of pay in terms of para 2 of the Punjab Government
            Letter No. 5056-FR-11157/6600 dated 23.7.1957 or acy subsequent
            letters/notifications issued by the Haryana Government referred to in
            the preceding paras, which letters already become inoperative on their
B           improving/acquiring higher qualifications during the course of their
            service automatically. The masters/teachers in the Education
            Department will be placed in the scales of pay of their respective
            categories to which they are appointed against the sanctioned posts
            and mere possession/acquiring of higher qualifications will not entitle
c           them automatically to claim higher pay scales."

                                                              (emphasis supplied)

          In the year 1996 the respondents filed a writ petition in the Punjab &
    Haryana High Court contending that as they possessed qualification of B.A.
D   or B.Ed. or both, they are entitled to a higher scale of pay in terms of the
    aforementioned 19:79 circular and the State be directed to give them the scale
    of pay admissible to Hindi teacher. The High Court relying upon a decision
    in Rattan Singh and Ors. v. State of Haryana, [1994] Vol. 3 Recent Service
    Judgment 220 allowed the petition and issued a direction to the appellant
    herein to accord pay scale of Hindi teacher to the respondents. It is against
E   the said judgment that the appellant is before us in appeal by way of special
    leave petition.

          The learned counsel appearing on behalf of the appellant inter alia
    submitted that the view taken by the High Court is erroneous and deserves
F   to be set aside having regard to the decision of this Court in State ofHaryana
    and Anr. v. Kamal Singh Saharawat and Ors., [1993] 3 SCC 4~. The learned
    counsel appearing on behalf of the respondent, on the other hand, placing
    reliance on the decision in Wazir Singh v. State of Haryana [1995] Suppl. 3
    SCC 697 urged that the view taken by the High Court is correct.

G       In Wazir Singh (supra) the writ petitioner therein prayed for a grant of
  higher scale of pay as they had acquired higher qualifications while working
  as teachers. This Court having regard to the aforementioned circular dated
  9th March, 1990 came to the conclusion that a higher scale of pay is not
  automatically admissible as the State had altered their earlier policy. Keeping
  in view the changed situation this Court did not follow its earlier decision in
H Chaman Lal v. State of Haryana (1987] 3 SCC 11. However, having regard
                           STATE v. SUMITRADEVI                              355
to the concession made by the learned counsel for the State of Haryana, this         A
Court directed, 'all those who have acquired B.T./B.Ed before 9.3.1990 would
be entitled to get higher scales of pay in terms of para 2 of the composite
Punjab Government letter dated 23.7 .1957. In Kamal Singh Saharawat (supra)
a Bench of this Court considered the decision rendered in Wazir Singh (supra)
and a large number of other decisions and came to the conclusion, 'thus it
is seen, that there is no judgment of this Court holding that Teachers acquiring     B
postgraduate qualifications or qualifications prescribed for the post of Lecturers
would automatically be entitled to scales of pay applicable to the Lecturers
on acquiring such qualifications without being appointed as Lecturers in
accordance with the rules.' The respondents herein were appointed after 1957.
They were appointed in the posts of masters and minimum qualification was            C
matriculate. They have acquired the degree or diploma much prior to their
appointment as would appear from the following chart set out at page C.
  Name                  Date of Adhoc         Date of            Year of passing
  appointment           regularization        Prabhakar

  Sumitra Devi          26.10.1983            I.I 1.1986         1975                D

  Sumitra Devi          26.10.1983            1.11.1986          1980

  Chandra Wati          01.09.1982            1.11.1986          1978

  Krishna                19.08.1983           1.11.1986          1977                E
  Shakuntala Devi       01.09.1982            1.11.1986          1975

  Chaman Devi           22.10.1983            1.11.1986          1978

      It is, therefore, not a case where the petitioner had acquired a F
qualification prior to 9th March, 1990 while acting as teachers of masters.
The circular letter dated 9th March, 1990 clearly states that a higher scale of
pay would not be admissible to them despite helding a higher qualification
having appointed on a lower post such a higher scale of pay was admissible
only to such teacher/masters who had enhanced their educational qualification G
during the course of service. The petitioner, therefore, were not entitled to
higher scale of pay. The learned counsel for the respondents submitted that
keeping in view the fact that persons having similar qualification are getting
higher scales of pay and as such this Court should not interfere with the
impugned judgment. The submission of the learned counsel cannot be accepted
for more then one reason. As the persons who have been granted higher H
    356                     SUPREME COURT REPORTS [2003] SUPP. 5 S.C.R.

A scales of pay enhanced their qualification while holding their offices they had
    been allowed to continue to get a higher scale of pay in view of the concession
    made by the learned counsel appearing on behalf of the State. This Court
    both in Wazir Singh (supra) and Kamal Singh Saharwat (supra) as indicated
    hereinbefore in no uncertain tenns held that even such holders of such offices
B   would not automatically be entitled, on acquisition of a highest qualification
    as higher scale of pay. The petitioners, as noticed, already had higher
    qualification and thus .not entitled to benefit of any circular whatsoever.
    Unfortunately, this aspect of the matter have not been taken into consideration
    by the High Court. Further more, even an order cannot be passed under
    Article 142 of the Constitution of India which will be contrary to the Statute
C   or statute of the Rule.

          Thus in this view of the matter that any teacher who was granted this
    pay scale was only those JBT teachers who were entitled to have a higher pay
    scale if they acquired qualification during the period of their service not prior
    to joining of the service.
D
         For the aforesaid reason, the appeal deserves to be allowed and the
    impugned judgment is to be set aside.

          There shall be no order as to costs.

E R.P.                                                             Appeal allowed.




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