STATE OF HARYANA AND ANR.versusPARTAP SINGH AND ORS.

A                        STATE OF HARYANA AND ANR.
                                      v.
                            PARTAP SINGH AND ORS.

                                SEPTEMBER 22, 2006                                     •.
B                     [G.P. MATHUR AND A.K. MATHUR, JJ.]


          Service Law:

          Punjab Civil Services Ru/es, 1969: Rule 4.4 Volume-I, Part-I.
c
          Pay fixation-Benefit of-Acquisition of higher qualifications-JET
   teachers in the State Education Department acquired higher qualifications
   of B.A.llnter B.Ed. during the course of their service-These teachers were
  promoted as Social Study Masters and subsequently granted one increment
D on account of discharge of higher responsibilities-Subsequently, the State
   Government withdrew the said increments-High Court held that the said
   increments could not be withdrawn-Correctness of-Held: In the present
  case, the teachers are already drawing the pay scale of the post of Master
   i.e. higher post-As such there is no question of granting them one increment
  further now-- Therefore, they cannot get another fixation of pay which would
E amount to double benefit-Judicial fiat cannot create anomalous position
  against the statute.

          The respondents were appointed as JBT teachers in the State Education
    Department. They acquired higher qualifications of B.A./lnter B.Ed. during
    the course of their service. A notification was issued to the effect that the
F   teachers who have acquired higher qualifications shall be granted higher
    grade. The respondents who had acquired higher qualifications were given
    the grade of Social Study Master and subsequently when they were promoted
    as Social Study Masters they were granted one increment on account of
    discharge of higher responsibilities from the date of promotion as Social
G   Study Masters and their initial pay in the promotional grade was fixed under
    Rule 4.4 of the Punjab Civil Services Rules, 1969. Subsequently, t:1e State
    Government decided that increment on account of discharge of higher
    qualifications could not be granted to the .Social Study Masters and, therefore,
    withdrew the said increments.

H                                         540
                           STATEOFHARYANAv. PARTAPSINGH                            541
             The High Court held that the respondents were discharging higher              A
       responsibilities while teaching higher classes in schools and, therefore, under
       Rule 4.4 of the Rules they were entitled to the said increment and it could not
       be withdrawn. Hence the appeal.
...          The following question arose before the Court:-
                                                                                           B
            Whether the respondents are entitled to the benefit of Rule 4.4 of the
       Punjab Civil Services Rules, 1969, Volume-I, Part-I or not?

             Allowing the appeals, the Court

               HELD: l. Under Rule 4.4 of the Punjab Civil Services Rules, 1969 in         C
        case of promotion which involves.responsibilities of greater importance then
        the incumbent will draw as initial pay the stage of time-scale next above his
        substantive pay in respect of the old post. That means he will be entitled to
        one increment in the old post. But in the present case, the respondents are
        already drawing the pay scale of the post of Master i.e. higher post. As such      D
        there is no question of granting them one increment further now. Under Rule
        4.4 it would have been possible to grant them fixation if they were continuing
        in the old scale of JBT teachers and on their promotion to the post of Master,
        then certainly they would have been entitled to fixation of pay giving them the
        initial pay the stage of time scale next above their substantive pay in ·respect
        of the old post. But they are already fixed in the pay scale of higher post of     E
        Master which though legitimately they were not entitled to because of the
        change in the policy but they continued in the higher pay scale despite the
        change in the policy and the Government did not take any further steps to put
        the house in proper order. Be that as it may, since the respondents were
        drawing the higher pay scale on acquiring higher educational qualifications,
        i.e. the Master's pay scale, and now only regular orders have been passed,         F
      . promoting ttiem as Masters, there is no question of again fixing them next
        above their substantive pay in respect of the old post. They are not holding
        the old post any more and they were not drawing the salary of JBT teachers
        i.e. the old post. Therefore, there is no question of granting them the initial
        pay the stage of time scale next above their substantive pay in respect of the     G
        old post.1543-F-H; 544-A-GI

             State of Haryana v. Sumitra Devi, 12004112 SCC 322 and Union of India
       v. Ashoke Kumar Banerjee, 119981 5 SCC 242, relied on.

             2. When the respondents were already getting the functional pay of            H
     542                    SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A Masters while working as JBT teachers they have been promoted in the pay
     scale of Masters. Therefore, they cannot get another fixation of pay which
     would amount to double benefit to the persons who are already working as
     Masters. Judicial fiat cannot create anomalous position against the statute.
                                                                           1548-F-Gl    ...
B          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6992 of2004.

          From the Judgment and Order dated 30.8.2000 of the High Court of
     Punjab and Haryana at Chandigarh in C. W.P. No. 720/2000.
                                         WITH
C           C.A. Nos. 6306, 6307, 6318, 6293, 6302, 6305, 6321, 767812004 and C.A.
    l\Jo. 4239/20006.

         P.N. Mishra, Manjit Singh, A.A.G., Harikesh Singh and T.V. George for
    the Appellants.

D         Balbir Singh, Gupta, H.K. Kataria, Kamal Mohan Gupta, Dr. Kailash
    Chand, Baldev Atreya, Vijay K. Jain, Rajesh Tyagi, Aparna Bhardwaj Praveen
    Jain for the Respondents and Ram Pal-Respondent (No.34)-ln-Person.

           The Judgment of the Court was delivered by

E          A.K. MATHUR, J. Leave granted in S.L.P. (C) No. 16359 of 2003.

          All these cases involve common question of law and fact, therefore,
    they are disposed of by this common order.

          In all these cases, the basic question involved is whether the respondents
F   herein are entitled to the benefit of Rule 4.4 of the Punjab Civil Services Rules
    (hereinafter to be referred to as the "Rules"), Volume-I, Part-I or not?

        For convenient disposal of these cases, the brief facts given in C.A. No.
  6305 of2004 State of Haryana & Anr. v. Tarlochan Lal & Ors. are taken into
G consideration. The writ petitioners were appointed as J.B. T. teachers in the
  Haryana Education Department. They acquired higher qualifications of B.A./
  Inter B.Ed, during the course of their service. A notification was issued on
  23.7.1957 to the effect that the teachers who have acquired higher qualificatim;is
  shall be granted higher grade. The writ petitioners who acquired higher
  qualifications were given the grade of Social Study Master and subsequently
H when they were promoted as Social Study Master they were granted one
           STATEOFHARYANAv.PARTAPSINGH[A.K.MATHUR, J.)                     543
 increment on account of discharge of higher responsibility from the date of      A
 promotion as Social Study Master and their initial pay in the promotional
 grade was fixed under Rule 4.4. Subsequently, the State Govem'llent decided
 that grant of increment on account of discharge of higher qualifications could
 not be granted to the Social Study Masters, the Drawing and Disbursing
 Officers withdrew the said increments. The claim of the writ petitioners was     B
 that since the increment had been granted because th'ey were discharging
 higher responsibility while teaching higher classes in schools, therefore,
 under Rule 4.4 of the Rules they were entitled to the said increment and it
 cannot be withdrawn.

       The matter was contested by the State appellants before the High Court C
and a plea was taken that it is immaterial whether the writ petitioners teach
in Class VI or Class X , that does not make any difference, it does not involve
discharging of higher responsibility and they were not promoted on
administrative posts. It was also pointed out that they had already been
granted higher pay scale on acquiring higher qualification and therefore, they
are not entitled to one additional increment or pay fixation under Rule 4.4 of D
the Rules. It was not disputed that before promotion which was subsequently
granted to the writ petitioners, they were teaching Class I to Class V and on
their acquiring higher qualification, they were givers the grade of Masters and
they were asked to teach the students of Class VI to Class X. The contention
of the writ petitioners before the High Court was that since they were
discharging the duties of higher responsibility i.e. for teaching the students E'
of Class VI to Class X, therefore, they.were entitled to one additional increment
and fixation of pay under Rule 4.4.

        It may be relevant to mention here that the circular dated 23.7.1957 was
 subsequently modified by the State ofHaryana vide Notification dated 9.3.1990 F
 and thereby it was clarified in para 6 of the said circular that the benefit which
·was given in terms of para 2 of 'the Punjab Government letter dated 23.7.1957
 or any subsequent letters/ notifications issued by the State Government, 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 G
 not entitle them automatically to claim higher pay scales, meaning thereby
 that after issuance of this notification, acquisition of higher qualification
 would not entitle the benefit of higher pay scale i.e. Masters' pay scale. In
 these writ petitions which were filed in 1998 before the High Court, perhaps
 this circular of the State Government dated 9.3.1990 was not brought to the H
     544                    SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R.

A notice of the Court. Be that as it may, in view of the changed policy of the
   State of Haryana, the JBT teachers who acquired higher qualifications were
   not entitled to the higher pay scale of Masters. The State Government did not
   take any steps in pursuance to this circular. Therefore, by virtue of the earlier
   circular dated 23.7.1957 those teachers continued in the higher pay scale of
   masters. Subsequently they were promoted to the post of Masters, they again
B sought the benefit of one more increment by filing writ petitions. But it was
   not brought to the notice of the Court that their continuation in the pay scale
   of Masters was against the policy but they were allowed to continue in the
   Masters' pay scale and when the regular promotion to the post of Master was
   made, they claimed re-fixation of pay scale as per Rule 4.4 of the Rules and
C that too was allowed by the High Court de hors the fact that the earlier
  circular dated 23.7.1957 has since been clarified by the State Government in
  the subsequent circular dated 9.3.1990. It was also pointed out by the State
  Government by filing an affidavit by Shri Dayal Singh Sangwan, Budget
  Officer (Schools) before this Court that though these writ petitioners were
  granted pay scale of Masters while working on a lower post of JBT teachers,
D on acquiring higher qualification of B.A., B.Ed. in terms of the aforesaid
  circular dated 23.7.1957 but they were not appointed or promoted to the post
  of Masters. They were of course drawing the pay scale of Masters but no
  regular promotion was given to them. Now regular promotion having been
  given, they cannot claim fixation of pay in terms of Rule 4.4 of the Rules
E because they are already in the same pay scale of Masters. It was also
  pointed out that this will result in heart burning amongst the direct recruits
  who have been working as Masters for longer period but would be getting
  lesser pay than those like the respondents if the impugned judgment is
  upheld. It was also pointed out that the respondents were already getting the
  functional pay scale of the promotion post of Masters while working in the
F cadre of JBT teachers and the pay was also fixed in the higher pay scale and
  thus on their actual promotion to the post of Masters they are not entitled
  to re-fix their pay by granting one additional increment. Since the respondents
  were already getting the functional pay scale of the promotional post from the
  date of acquiring the qualifications of the promotional post of Masters,
G therefore, there is no question of granting the benefit of Rule 4.4 of the Rules
  to the respondents.

        Learned counsel for the appellants strenuously submitted that once the
  respondents while working as JBT teachers having been granted higher pay ·
  scale of Masters and now the regular promotion order was issued, it would
H not be possible to grant them one more increment while fixing their pay in the
          STATEOFHARYANAv. PARTAP SINGH [A.K. MATHUR, J.]                  545
  promotional post of Master. The submission of learned counsel for the A
  appellants appears to be justified. Since the respondents herein were already
  functioning in the pay scale of Masters and it was nothing but regularisation
  of their pay which they were not entitled to because of the change in the
  policy but they were allowed to continue and now when the regular promotion
  is sought to be given' to them they cannot get the double benefit of fixation B
  of pay. As per the rejoinder affidavit filed on behalf of the State Government
  by Sh. Dayal Singh Sangwan, Budget Officer (Schools) in the Directorate of
  Secondary Education, Haryana, it appears that the respondents on acquiring
  the higher qualifications were granted one additional increment though they
  were not entitled because by that time the policy has been changed in 1990
  but nobody challenged the earlier judgments by which the Court allowed C
  them to continue in the functional pay scale of Masters. Now, because of
  regular promotion order being issued for the post of Masters, it only amounts
  to regularisation of the pay scale which they were already drawing i.e. pay
· scale of Masters. Thus, granting of one more increment because of
  regularisation of the respondents by promoting them to the post of Masters, D
  would not entitle them the double benefit, though they have already got one
  increment on acquiring the higher educational qualifications and now on
  regular promotion being given in the Masters' pay scale in which they were
  already working, they cannot claim another benefit. Rule 4.4 reads as under:

        "4.4. The initial substantive pay of a Government employee who is E
        appointed substantively to a post on a time-scale of pay is regulated
        as follows:-

         (a) If he holds a lien on a permanent post, other than. a tenure post,
         or would hold lien on such a post, had his, lien not been suspended-

        (i) when appointment to the new post involves the assumption of            F
        duties or responsibilities of greater importance (as interpreted for the
        purposes of rule 4.13) than these attaching to such permanent post,
        he will draw as initial pay the stage of the time-scale next above his,
        substantive pay in respect of the old post;

        (ii) when appointment to the new post does not involve such G
        assumption, he will draw as initial pay the stage of the time-scale
        which is equal to his substantive pay in respect of the old post, or,
        if there is no such stage, the stage next below that pay plus personal
        pay equal to the difference, and in either case will continue to draw
        that pay until such time as he would have received an increment in H
     546                     SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A            tjie time scale of the old post or for the period after which an increment
             is earned in the time-scale of the new post, whichever is less. But if
             the minimum of the time-scale of the new post is higher than his
             substantive pay in respect of the old post he will draw that minimum
             as initial pay.

B            (iii) when appointment to the new post is made on his own request
             under rule 3.17 (a) and maximum pay in the time-scale of that post is
             less than his substantive pay in respect of the old post, he will draw
             that maximum as initial pay."

   The above rule says that when appointment to the new post involves the
C assumption of duties or responsibilities of greater importance than those
  attaching to such permanent post, the incumbent will draw as initial pay the
  stage of time scale next above his substantive pay in respect of the old post
   meaning thereby that the promotion which involves responsibilities of greater
   importance then in that case the incumbent will draw as initial pay the stage
D of time-scale next above his substantive pay in respect of the old post. That
  means he will be entitled to one increment in the old post. But in the present
  case, the respondents are already drawing the pay scale of the post of Master
  i.e. higher post. As such, where is the question of granting them one increment
  further now? Under rule 4.4 it could have been possible to grant them fixation
  if they were continuing in the old scale of JBT teachers and on their promotion
E to the post of Master, then certainly they would have been entitled to fixation
  of pay giving them the initial-pay the stage of time scale next above their
  substantive pay in respect of the old post. But they are already fixed in the
  pay scale of higher post of Master which though legitimately they were not
  entitled to because of the change in the policy but they continued in the
F higher pay scale despite the change in the policy and the Government did not
  take any further steps to put the house in proper order. Be that as it may, since
  the respondents were drawing the higher pay scale on acquiring higher
  educational qualifications, i.e. the Master's pay scale, and now only regular
  orders have been passed, promoting them as Master, there is no question of
  again fixing them next above their substantive pay in respect of the old post.
G They are not holding the old post any more and they were not drawing the
  salary of JBT teachers i.e. the old post. Therefore, there is no question of
  granting them the initial pay the stage of time scale next above their substantive
  pay in respect of the old post.

           In this connection, a reference may be made to the decision of this
H
         STATEOFHARYANAv. PART AP SINGH [A.K. MATHUR, J.]                  547

Court, in the case of State of Haryana & Ors. v. Sumitra Devi & Ors..            A
 reported in (2004] 12 SCC 322, wherein the earlier decisions of this Court on
similar controversy were reviewed and it was observed in paragraph 5 of the
judgment as follows :

           "It is, therefore, not a case where the petitioners had acquired a
         qualification prior to 9.3.1990 while acting as teachers or masters. The B
         circular letter dated 9.3.1990 clearly states that a higher scale of pay
          would not be admissible to them despite holding a higher qualification
          having been appointed on a lower post. Such higher scale of pay was
          admissible only to such teachers/ masters who had enhanced their
          educational qualification during the course of service. The petitioners, C
          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,
         as such this Court should not interfere with the impugned judgment.
         The submission of the learned counsel cannot be accepted for more
     .. than one reason. As the persons who'have been granted higher D
        . scales of pay enhanced their qualification while holding their offices
          they had been allowed to continue to get a higher sea le of pay in view
         of the concession made by the learned counsel appearing on behalf
         of the State. This Court, both in Wazir Singh and Kamal Singh
         Saharwat as indicated hereinbefore, in no uncertain terms held that E
         even such holders of such offices would not automatically be entitled
         to, on acquisition of a higher qualification, a 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 has not been ·taken into consideration by the
         High Court. Furthermore, even an order cannot be passed under F
         Article 142 of the Constitution which Wiil be contrary to the statute
         or statutory rules."

In this case, the respondents were in the pay scale of JBT teachers and similar
claim was made. This was negatived by this Court. Apart from this, there is
another direct decision on the similar issue, in the case of Union of India & G
Ors. v. Ashoke Kumar Bane1jee. reported in (1998] 5 SCC 242, wherein
Fundamental Rules 22(l)(a)(I) came up for consideration before this Court. In
this case, the respondent was a Junior Engineer In the pay scale of Rs. 1640-
2900/- and he was granted the pay scale of Assistant Engineer in the pay
scale of Rs. 2000-3500/-. The respondent received the same benefit in advance H
    548                     SUPREME COURT REPORTS [2006) SUPP. 6 S.C.R.

A while working as Junior Engineer on completion of 15 years service and not
    actually functioning as Assistant Engineer. The respondent was held not
    entitled to further increment & fixation on promotion to the post of Assistant
    Engineer in the pay scale of Rs. 2000-3500/-. In that context, their Lordships
    held as follows :

B               " The respondent having received the same benefit in advance,
            while working as Junior Engineer and while not actually functioning
            as an Assistant Engineer, is not entitled to the same benefit of fresh
            fitment in the scale of Rs.2000-3500 when he is promoted as Assistant
            Engineer. This is because on actual promotion as Assistant Engineer,
            he is not being fitted into the "time scale of the higher post" as stated
c           in FR 22 (I) (a) (I). That situation was already over when he got
            benefit on completion of 15 years. Further, the respondent is a junior
            officer in the category of Junior Engineers and he has already got the
            benefit of the FR on completion of 15 years. If he is to be given a
            second benefit on the basis of the same FR, then he would be getting
D           more than his seniors, who might have got promoted earlier and might
            have got benefit of FR 22( I) (a)( I) only once. Such an anomaly is not
            intended by FR 22(1) (a) (I)."

         Here in the present case, the difference is that the respondents are
  getting the higher pay scale i.e. Master pay scale, on acquiring higher
E educational qualification though in fact they were not promoted to the post
  of Masters. In the case of Ashoke Kumar Banerjee (supra) functional pay of
  Assistant Engineer in the pay scale of Rs. 2000-3500/- was granted to
  incumbent on completion of 15 years of service. lnj identical situation, the
  Court declined to grant re-fixation of pay as per FR 22( I)(a)( I) and same is
F the position in the present case. When the respondents were already getting
  the functional pay of Masters while working as JBT teachers, now they have
  been promoted in the pay scale of Masters. Therefore, they cannot get
  another fixation of pay which would amount to double benefit to the persons
  who are already working as ·Masters. Judicial fiat cannot create anomalous
  position against the statute. Hence, we allow all these appeals and set aside
G the impugned judgments of the Punjab & Haryana High Court. However,
  whatever benefits, if any, received by the respondents would not be recovered
  and they will not be entitled to fixation under Rule 4.4 of the Rules. No order
  as to costs.

    v.s.                                                          Appeals allowed.