Vijay Kumar v. State of U.P. and 3 Others

Court No. - 35 Case :- WRIT - A No. - 13688 of 2023 Petitioner :- Vijay Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Seemant Singh Counsel for Respondent :- C.S.C. Hon'ble Vikas Budhwar,J. Heard Sri Seemant Singh, learned counsel for the writ petitioner and Sri Saurabh, learned Standing Counsel, who appears for Respondents 1, 2 and 3. The case of the writ petitioner is that pursuant to the selections conducted for the post of Assistant Teacher in subject Mathematics in Upper Primary School, he was accorded appointment on

21.09.2015 by the District Basic Education Officer, and he was permitted to join in Upper Primary School, Ramnagra, Pachpedwa, District Balrampur on 22.09.2015. Thereafter a selection is stated to have been conducted pursuant to Advertisement No.1 of 2013 for appointment as Assistant Teacher (Trained Graduate), consequently, a communication was issued by the District Inspector of Schools, Saharanpur for placement of the writ petitioner in the fourth respondent institution, J.V. Inter College, Rajupur, Saharanpur. The writ petitioner was assigned in the pay-scale of Rs.9400-34,800 and in the Grade Pay of Rs.44,900. Since the pay, which was accorded to the writ petitioner pursuant to the selection and the appointment on the post of Assistant Teacher (Trained Graduate Grade) in subject Mathematics in J.V. Inter College, Rajupur, Saharanpur was less than the pay-scale which the writ petitioner claims to have enjoyed as Assistant Teacher in Mathematics in Upper Primary School, Ramnagra, Pachpedwa, District Balrampur being Rs.9300-34800, Grade Pay 4600, so the writ petitioner espoused his cause for payment of the benefits relatable to the pay-scale 9300-34800, Grade pay 4600 while according pay-protection. The claim of the writ petitioner for according the said benefit came to be rejected by the third respondent, District Inspector of Schools, by virtue of the order dated 20.06.2023. Questioning the said order, the writ petitioner had filed the present writ petition in so far as it denied the pay protection, pay-fixation in terms of the pay-scale of Rs.52000, Grade pay 4600, which he was enjoying on the post of Assistant Teacher in Mathematics, in Upper Primary School, Ramnagara, Pachpedwa, Balrampur. This court entertained the writ petition on 28.08.2023 and passed the following orders:- "The contention of the learned counsel for the writ petitioner is that there is a vast anomaly in the payment of the monetary benefits to the writ petitioner particularly in view of the fact that when the writ petitioner was posted as Assistant Teacher (Trained Grade) in Upper Primary School in Ramnagra Pachpedwa, District Balrampur, he joined the Pay Scale of Rs. 52,000/- Grade Pay 4,600/- reference whereof has been made in page 45, however, consequent to his selection and appointment as an Assistant Teacher in Intermediate College, J.V. Inter College Rajupur, District Shaharanpur his pay scale is 9,400-34,800-44,900 which is below the same and when the writ petitioner staked his claim for pay protection then it has been turned down by virtue of the order dated 20.06.2023 which is already on record at page 47 of the paper book relying upon a Government Order dated 5th February, 1999 and a clarification of the Education Direction (Madhyamic) dated 14.02.2023 without considering the import and impact of the Government Order dated

28.01.1985 which is at page 60 of the paper book for reference para 2 of the same. Sri Shailendra Singh, learned Standing Counsel seeks time to obtain instructions. On his request, put up this case as fresh on 11.09.2023 on which date Sri Shailendra Singh shall obtain instructions or file affidavit specifically disclosing; (a) the Government Order, if any, entitling the writ petitioner for pay protection; (b) the issue with regard to the discrepancy and the variation in the pay scale as discussed above; (c) any other provision of law which entitled the writ petitioner for the said benefits and the forum where at the writ petitioner may raise his cause." A counter affidavit has been filed on behalf of the Respondents No. 1, 2 and 3, sworn by Associate District Inspector of Schools, District, Saharanpur, dated 24.11.2023, to which a rejoinder affidavit has been filed. Shri Seemant Singh, learned counsel for the writ petitioner, while assailing the order dated 20.06.2023, passed by the third Respondent, District Inspector of Schools, Saharanpur, has sought to contend that firstly, the order impugned is a non-speaking and unreasoned order, as the same does not advert to the crucial fundamental issues and, by passing a non-reasoned order without considering the claim of the writ petitioner, the claim has been rejected. He submits that once in the wake of the Government Order dated 05.02.1999, the writ petitioner has been made admissible to the pensionary benefits including the services undergone as an Assistant Teacher in Mathematics in Upper Primary School, Ramnagra, Pachpedwa, District Balrampur. Then obviously, he is entitled to be accorded pay protection. Submission is that the pay which the writ petitioner is getting as an Assistant Teacher Trained Graduate in J. V. Inter College, Rajupur, Saharanpur is lower than what he enjoyed in the earlier assignment. In order to substantiate his claim, he has sought to rely on a Government Order dated 28.01.1985 so as to contend that Clause 1(2) of the same itself provides for pay protection on the premise that the pay which a teacher was enjoying in the previous assignment should be protected and the pay should be commensurate and in the same level. Shri Seemant Singh further submits that once the payment is to be made through State Exchequer referable to both the assignments, then obviously the writ petitioner cannot be denied the pay protection. Countering the said submission, Shri Saurabh, learned Standing Counsel submits that the Government Order dated 28.01.1985 would not come to the aid and assistance of the writ petitioner, particularly when paragraph-2 clarifies sub-para (2) of Para-1, according to which pay protection is only to be accorded in those contingencies where an earlier assignment was an Institution, which was regulated under the provisions of U.P. Intermediate Education Act, 1921. Submission is that the Government Order dated 28.01.1985 would not apply in the case of the writ petitioner, as the earlier assignment/ working of the writ petitioner was Assistant Teacher in Upper Primary School, Ramnagra, Rajupur, District Balrampur, which was not regulated or governed under the U.P. Intermediate Education Act, 1921. Additionally, it is being sought to be argued that once the said Government Order is not applicable and it restricts to certain conditions and factors, then the writ petitioner, in absence of any other Government Order enabling such benefits, it would not come to the rescue of the writ petitioner. He seeks to rely upon the decision in Special Appeal No. 253 of 2020, State of U.P. v. Dr. Raj Kamal Singh, dated

21.04.2020. Before delving into the tenability of the arguments of the rival parties, it would be apposite to extract the Government Order dated 28.01.1985 as under:- " आययोग दቛኋरቛኋ चयननित अध्यቛኋपक कቛኋ ववेतनि ननिरቛኋ቗ኋरण आदवेश संख् याኋ ‌3200/पन् दቖ ह-8/2004-(11)/84 ेपेषक,oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooसेवाኋ ‌म, शीኍ ‌गोववन् द‌ब्ቤ भ‌पन् त,ooooooooooooooooooooooooooooooooooooooooooooooooooooooooवशकाኋ ‌वनि देशक, उप‌सवचव,oooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooउ्ቈ र‌पदेश,oइलाኋ हाኋ बाኋ द। उ्ቈ र‌पदेश‌शाኋ सनि । वशकाኋ ‌ अनि ुभाኋ ग -8ooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooooo लखनि ऊः‌ वदनि ाኋ ंकः‌ 28 जनि वरीኍ ,o1985 ववषयः‌राኋ ज् य‌के ‌सहाኋ वयक‌उच् चतर‌माኋ ध् यवमक‌वव्ाኋ लयोሱ ‌ (हाኋ ईस् कलोሱ ‌तथाኋ ‌इण् टरमीኍ वडि एटू काኋ लेजोሱ )oमे‌वशकक,oपधाኋ नि ाኋ ध् याኋ पक‌व‌पधाኋ नि ाኋ चाኋ यरኋ‌काኋ ‌वेतनि ‌वनि धाኋ रኋ ण‌व‌वेतनि ‌के ‌सम् बन् ध‌मे। महोदय, रኋउपयकሹु ‌ववषयक‌शाኋ सनि ाኋ देश‌संख् याኋ ‌4484/पन् दቖ ह-8-2004(56)/1970,oवदनि ाኋ ंक‌20oजसतम् बर 1973oके ‌ቅम‌मे‌तथाኋ ‌इस‌आदेश‌के ‌ववसंगत‌पूवरኋ‌आदेशोሱ ‌को‌अवतቅवमत‌करते‌हहए‌यह कहनि े‌काኋ ‌वनि देश‌हहआ‌ह‌ै वक‌राኋ जय‌के ‌सहाኋ यताኋ ‌पाኋ ् ‌अशाኋ सकीय‌उच् चतर‌माኋ ध् यवमक ेवव्ाኋ लयोሱ ‌(हाኋ ईस् कू लोሱ ‌तथाኋ ‌इण् टरमीኍ वडि एट‌काኋ लेजोሱ )oम‌सकम‌अजधकाኋ रीኍ ‌के ‌अनि ुमोदनि ‌से वनि यमाኋ नि ुसाኋ र‌वनि यकሹु ‌तथाኋ ‌काኋ यरኋ त‌अध् याኋ पकोሱ , oपधाኋ नि ाኋ ध् यपको‌तथाኋ ‌पधाኋ नि ाኋ चाኋ यर‌जजनि कों उ्ቈ र‌पदेश‌माኋ ध् यवमक‌वशकाኋ ‌सेवाኋ ‌आयोग‌दाኋ राኋ ‌समकक‌याኋ ‌उच् चतर‌पदोሱ ‌पर‌चयनि ‌के फलस् वरू प‌वनि यकሹु ‌वकयाኋ ‌जाኋ य‌उनि के ‌वेतनि ‌काኋ ‌वनि धाኋ रኋ ण‌इस‌शाኋ सनि ाኋ देश‌के ‌जाኋ रीኍ ‌होनि े‌की वतजथ‌से‌जजलाኋ ‌वव्ाኋ लय‌वनि रीኍ कक‌तथाኋ ‌उनि से‌सम् बदቍ ‌लेखाኋ जधकाኋ ररयोሱ ‌दाኋ राኋ ‌संयकሹ ‌रू प‌सेु वनि म् नि जलजखत‌काኋ यरኋकाኋ रीኍ ‌जसदቍ ाኋ न् तोሱ ‌के ‌आधाኋ र‌पर‌वकयाኋ ‌जाኋ य-ooooo(1)oमाኋ ध् यवमक‌वशकाኋ ‌सेवाኋ ‌आयोग‌दाኋ राኋ ‌समकक‌पद‌हेतु‌वनि यमाኋ नि ुसाኋ र‌चयवनि त‌उनि अध् याኋ पको,oपधाኋ नि ाኋ ध् याኋ पको‌तथाኋ ‌पधाኋ नि ाኋ चाኋ यर‌को‌जो‌अस् थाኋ ई‌अथवाኋ ‌स् थाኋ नि ाኋ प्ቐ ‌रू प‌सें रኋसमक‌अजधकाኋ रीኍ ‌के ‌अनि ुमोदनि ‌से‌काኋ यरत‌ह‌ै उस‌पद‌पर‌वनि यमाኋ नि ुसाኋ र‌पाኋ ् ‌अनि ुमोवदत‌वेतनि को‌सुरवकत‌वकयाኋ ‌जाኋ येगाኋ ‌और‌उ्नहे‌अगलीኍ ‌वेतनि ‌वृवदቍ ‌उसीኍ ‌वतजथ‌को‌देय‌होगीኍ ‌जजस‌वतजथ को‌वे‌अनि ुमोवदत‌पद‌पर‌अजजरኋत‌करते‌ह।ै ooooo(2)oमाኋ ध् यवमक‌वशकाኋ ‌सेवाኋ ‌आयोग‌दाኋ राኋ ‌उच् चतर‌पद‌पर‌वनि यमाኋ नि ुसाኋ र‌चयवनि त‌वकसीኍ अध् याኋ पक/पधाኋ नि ाኋ ध् याኋ पक‌के ‌पूवरኋ‌पद‌पर‌वनि यमाኋ नि ुसाኋ र‌आहररत‌अनि ुमन् य‌वेतनि ‌के ‌आधाኋ र‌पर उच् च‌पद‌के ‌वेतनि माኋ नि ‌के ‌पाኋ रबम् भक‌सोपाኋ नि ‌(स् टेज)oपर‌वनि धाኋ रኋ रत‌वकयाኋ ‌जाኋ येगाኋ ‌यवद‌उसकाኋ वेतनि ‌उच् च‌पद‌के ‌वेतनि माኋ नि ‌के ‌न् यनि तम‌से‌कम‌है,oअन् यथाኋ ‌उच् च‌पद‌के ‌वेतनि माኋ नि ‌के ‌अगलेू सोपाኋ नि ‌पर‌वनि धाኋ रኋ रत‌वकयाኋ ‌जाኋ येगाኋ । ooooo(3)oउच् चतर‌पद‌पर‌चयवनि त/पो्ቐ त‌होनि े‌की‌दशाኋ ‌मे‌उच् चतर‌वेतनि माኋ नि ‌के ‌उपयरኋकሹु ‌उप पस् तर‌(2)oके ‌अनि ुसाኋ र‌वेतनि ‌ववधाኋ रኋ ण‌के ‌पश् चाኋ त‌यवद‌वकसीኍ ‌स् थाኋ ई‌पद‌धाኋ रक‌काኋ ‌मौजलक रኋवेतनि ‌पूव‌पद‌पर‌वेतनि ‌वृवदቍ ‌की‌वतजथ‌को‌उच् चतर‌पद‌पर‌अनि ुमन् य‌वेतनि ‌के ‌बराኋ बर‌याኋ उससे‌अजधक‌हो‌जाኋ ताኋ ‌है,oतो‌उस‌वतजथ‌से‌उसकाኋ ‌वेतनि ‌उच् चतर‌पद‌के ‌वेतनि माኋ नि ‌मे‌अगले सोपाኋ नि ‌पर‌पुनि ः‌वनि धाኋ रኋ रत‌वकयाኋ ‌जाኋ येगाኋ । oooooo2.oउपयरኋकሹु ‌काኋ यरኋकाኋ रीኍ ‌जसदቍ ाኋ न् तोሱ ‌पर‌वेतनि ‌वनि धाኋ रኋ रत‌करते‌समय‌उकሹ ‌अजधकाኋ ररयोሱ ‌काኋ पूणरኋ‌दाኋ वयत् व‌होगाኋ ‌वक‌वे‌इस‌बाኋ त‌काኋ ‌पूराኋ ‌ध् याኋ नि ‌रखे‌वक‌अध् याኋ पक‌दाኋ राኋ ‌पूवरኋ‌मे‌की‌गयीኍ रኋसेवाኋ ‌माኋ ध् यवमक‌वशकाኋ ‌अजधवनि यम ,o1921 oतथाኋ ‌अन् य‌शाኋ सनि ाኋ देशोሱ ‌के ‌अन् तगत‌की‌गयीኍ वनि यवमत‌सेवाኋ ‌हो‌और‌उसमे‌वकसीኍ ‌पकाኋ र‌काኋ ‌व् यवधाኋ नि ‌नि ‌हो।‌पथम‌वनि यवु कሹ ‌के ‌समय‌उसे वनि यमाኋ नि ुसाኋ र‌हीኍ ‌वेतनि ‌वदयाኋ ‌गयाኋ ‌हो।‌पथम‌वनि यवु कሹ ‌पर‌उच् च‌पाኋ रबम् भक‌वेतनि ‌अथवाኋ अवतररकሹ ‌वेतनि ‌ववृ दቍ यॉ‌नि ‌दीኍ ‌गयीኍ ‌हो‌और‌समय -समय‌पर‌वेतनि ‌पुनि रीኍ कण‌के ‌फलस् वरू प वेतनि ‌वनि यमाኋ नि ुसाኋ र‌सकम‌अजधकाኋ रीኍ ‌दाኋ राኋ ‌वनि धाኋ रኋ रत‌व‌पवतहस् ताኋ कररत‌वकयाኋ ‌गयाኋ ‌हो।‌उसमे वकसीኍ ‌पकाኋ र‌की‌अवनि यवमतताኋ ‌नि ‌हो। ooooo3.oउपरोकሹ ‌के ‌अवतररकሹ ‌मुझे‌यह‌भीኍ ‌कहनि े‌काኋ ‌वनि देश‌हहआ‌ह‌ै वक‌माኋ ०‌वशकाኋ ‌सेवाኋ आयोग‌दाኋ राኋ ‌चयवनि त‌वकसीኍ ‌पवू रኋ‌संस् थाኋ ‌मे‌काኋ यरኋ त‌अध् याኋ पक‌को‌यवद‌पथम‌वनि यवु कሹ ‌के समय‌उच् च‌वेतनि ‌अथवाኋ ‌अवतररकሹ ‌वेतनि ‌ववृ दቍ यॉ‌दीኍ ‌गयीኍ ‌होሱ ,oतो‌पाኋ ् ‌वेतनि ‌के ‌आधाኋ र‌पर उनि काኋ ‌वेतनि ‌तय‌तक‌वनि धाኋ रኋ रत‌नि हीሻ ‌वकयाኋ ‌जाኋ येगाኋ ‌जब‌तक‌इस‌बाኋ त‌की‌पुवषኌ ‌नि ‌हो‌जाኋ ये वक‌उन् हे‌उच् च‌वेतनि ‌अथवाኋ ‌अवतररकሹ ‌वेतनि ‌अथवाኋ ‌अवतररकሹ ‌वेतनि ‌वृवदቍ यॉ‌शाኋ सनि ‌की‌पूवरኋ अनि ुमवत‌से‌दीኍ ‌गयीኍ ‌ह।ै ‌यवद‌वे‌शाኋ सनि ‌की‌पूवरኋ‌अनि ुमवत‌से‌नि हीሻ ‌दीኍ ‌गयीኍ ‌ह‌ै तो‌उनि की‌वसूलीኍ उनि से‌कर‌लीኍ ‌जाኋ येगीኍ ‌और‌उनि के ‌वेतनि ‌काኋ ‌वनि धाኋ रኋ ण‌उनि की‌पथम‌वनि यवु कሹ ‌के ‌वदनि ाኋ ंक‌से पाኋ रबम् भक‌वेतनि ‌माኋ नि कर‌वनि यमाኋ नि ुसाኋ र‌वेतनि ‌वृवदቍ योሱ ‌काኋ ‌लाኋ भ‌देते‌हहए‌जजस‌स् तर‌पर‌आये, वनि धाኋ रኋ रत‌वकयाኋ ‌जाኋ येगाኋ । oooo4.oइस‌सम् बन् ध‌मे‌मुझे‌यह‌भीኍ ‌कहनि े‌काኋ ‌वनि दरश‌हहआ‌ह‌ै वक‌उकሹ ‌अजधकाኋ ररयोሱ ‌दाኋ राኋ पस् तर-1oमे‌उव्ቤ जखत‌ववजध‌से‌वकये‌गये‌वेतनि ‌वनि धाኋ रኋ ण‌के ‌आदेश‌वशकाኋ ‌वनि देशक‌व‌शाኋ सनि को‌भीኍ ‌पृषाኋ ंवकत‌वकये‌जाኋ येगे‌व‌वनि धाኋ रኋ ण‌की‌जॉच‌समय -समय‌वशकाኋ ‌वनि दरशाኋ लय‌के ‌वररष लेखाኋ जधकाኋ रीኍ ‌दाኋ राኋ ‌की‌जाኋ येगाኋ ‌और‌यवद‌उनि के ‌दाኋ राኋ ‌वकसीኍ ‌माኋ मले‌मे‌कोई‌अवनि यवमतताኋ ‌पाኋ ई जाኋ येगीኍ ‌तो‌उनि काኋ ‌यह‌उ्ቈ रदाኋ वयत् व‌होगाኋ ‌वक‌वे‌उसे‌तुरन् त‌वशकाኋ ‌वनि देशक‌की‌जाኋ नि काኋ रीኍ ‌मे लाኋ ये‌जजसे‌वे‌ठीኍ क‌करनि े‌हेतु‌सम् बबन् धत‌वशकाኋ जधकाኋ ररयोሱ ‌को‌वनि दरवशत‌करगे े‌तथाኋ ‌उसकी सूचनि ाኋ ‌यथाኋ शीኍ घቈ ‌शाኋ सनि ‌को‌भीኍ ‌देगाኋ । oooo5-oअतः‌आपसे‌अनि ुरोध‌ह‌ै वक‌आप‌कृ पयाኋ ‌उकሹ ‌बस् थवत‌से‌अपनि े‌अधीኍ नि स् थ‌समस् त अजधकाኋ ररयोሱ ‌को‌तुरन् त‌अवगत‌कर‌दे‌और‌इस‌शाኋ सनि ाኋ देश‌के ‌अधीኍ नि ‌शीኍ घቈ ताኋ ‌से‌काኋ यरኋवाኋ हीኍ वकयाኋ ‌जाኋ नि ाኋ ‌सुवनि बश् चत‌कर।े ooo6-oयह‌आदेश‌अशाኋ सकीय‌संख् याኋ /ई-11-189/दस-1985oवदनि ाኋ ंक‌24oजनि वरीኍ ,o1985oमे पाኋ ् ‌वव्ቈ ‌ववभाኋ ग‌की‌सहमवत‌से‌वनि गरኋत‌वकये‌जाኋ ‌रहे‌ह।ै ‌ भवदीኍ य, (गयोनवन्द ब्ቤभ पन्त) उप सनचव।" I have heard learned Counsel for the parties and perused the record carefully. It is not in dispute that the writ petitioner was earlier working as an Assistant Teacher in subject Mathematics in Upper Primary School, Ramnagara, Pachpedwa, District Balrampur since

22.09.2015. It is also not in dispute that pursuant to the recruitment exercise taken against Advertisement No. 1 of 2013, the writ petitioner was selected and appointed as an Assistant Teacher, Trained Graduate in J.V. Intermediate College, Rajupur, Saharanpur. Parties are also in agreement that the working of the writ petitioner in the earlier assignment as an Assistant Teacher, Mathematics, in Upper Primary School, Ramnagra, Pachpedwa, Balrampur was not regulated or governed under the provisions of U.P. Intermediate Education Act, 1921. In the opinion of the Court, the Government Order dated

28.01.1985 provides for pay protection, however, the same is subject to various conditions. Sub-Paragraph (2) of paragraph-1 provides for the pay protection. However, Para 2 clarifies the same while restricting it to the contingency that for availing pay protection, the earlier assignment or services undergone should be under U.P. Intermediate Education Act, 1921 and the Government Orders issued from time to time. Thus, the underlined principle would be that the earlier assignment, which is being claimed to be included for pay protection should be under U.P. Intermediate Education Act 1921. Since, in the present petition, the erstwhile working of the writ petitioner was in Upper Primary School, which is not regulated or governed under the U.P. Intermediate Education Act 1921. Thus, the writ petitioner cannot be accorded pay protection. Moreover, it is for the rule making authority or the framers of the government orders to prescribe the conditions according to which the pay protection is to be provided. It is not open for an incumbent to claim it as a matter of right. Additionally, the Court finds that the said Government Order has not been put to challenge in the present petition, nor any of the provisions of the same are being prayed to be read down. Apart from the same, mere inclusion of the earlier services for payment of pension is a separate aspect of the matter, which cannot be intermingled with the issue of pay protection. As regards the objection raised by the learned Counsel for the writ petitioner that the order of the District Inspector of Schools, Saharanpur dated 20.6.2023, is unreasoned and non-speaking, this Court is not convinced with the said argument, as the order negates the claim of the writ petitioner on a valid ground. Moreover, it is for the writ petitioner to claim his right independently on the basis of statutory provision of the Government Orders, if they seek to endorse his claim. Since nothing has been brought on record to substantiate the fact that the writ petitioner is entitled to be accorded pay protection on the basis of any statutory scheme or Government Order, the writ petitioner is not entitled to any relief. No other point has been pressed by the learned Counsel for the writ petitioner. Resultantly, the writ petition being wholly devoid of merits is dismissed. Order Date :- 13.12.2023 N.S.Rathour High Court of Judicature at Allahabad