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1997 Supreme(Sikk) 10
HIGH COURT OF SIKKIM
M. SENGUPTA
CHANDRA PRAKASH GURUNG - Appellant
Versus
STATE OF SIKKIM - Respondents
Writ Petition 29 Of 1996
Decided On : August 5, 1997
G.P.ROY, J.B.Pradhan, S.P.WANGDI
Discrimination in the grant of seniority and scale of pay to similarly situated employees is not permissible and can be challenged through a writ petition, but delay in approaching the Court may bar the claim for financial benefits.
Headnote:
SERVICE LAW - SENIORITY - COORDINATOR - LOWEST GAZETTED SCALE - ENTITLEMENT - DISCRIMINATION - DELAY IN APPROACHING COURT - LIMITATION - WRIT PETITION - MAINTAINABILITY.
Fact of the Case:
The Petitioner, a trained Graduate teacher, was appointed as a Coordinator in a Government School. He alleged that he was not given the scale prescribed for the lowest gazetted officers despite repeated representations. He also claimed seniority in the cadre of Coordinator with effect from the date of his joining the post.
Finding of the Court:
The Court held that the Petitioner was entitled to seniority in the post of Coordinator with effect from the date of his joining the post, but he was not entitled to the lowest gazetted scale with effect from the same date due to delay in approaching the Court. The Court directed that the Petitioner be treated to have found entry into the lowest gazetted scale with effect from a date not beyond the date on which another similarly situated employee was made eligible by the Court's order.
Issues: 1. Whether the Petitioner was entitled to seniority in the cadre of Coordinator with effect from the date of his joining the post? 2. Whether the Petitioner was entitled to the lowest gazetted scale with effect from the same date? 3. Whether the delay in approaching the Court barred the Petitioner's claim?
Ratio Decidendi: 1. The Court held that the Petitioner was entitled to seniority in the cadre of Coordinator with effect from the date of his joining the post because he was discriminated against by not being given the scale prescribed for the lowest gazetted officers despite repeated representations. 2. The Court held that the Petitioner was not entitled to the lowest gazetted scale with effect from the same date because he had delayed in approaching the Court. 3. The Court held that the delay in approaching the Court did not bar the Petitioner's claim for seniority, but it did bar his claim for the lowest gazetted scale.
Final Decision: The Court allowed the Writ Petition in part and directed that the Petitioner's name be deleted from the common seniority list of AEOs and others and be included in the gradation list of Coordinators treating him to be in that post for the purpose of seniority from the date of his joining the post. The Court also directed that the Petitioner be treated to have found entry into the lowest gazetted scale with effect from a date not beyond the date on which another similarly situated employee was made eligible by the Court's order.
( 1 ) IT is a Petition under Article 226 of the Constitution of India.
( 2 ) THE case of the Petitioner is that he was initially appointed as a trained Graduate teacher in a Government School on 22. 8. 1978. He acquired sufficient experience and underwent various trainings sponsored by the Government. On 18. 6. 1983 he joined in a post of Coordinator and Obtained Post graduate Degree. The scale and status of the coordinator is of the Lowest Gazetted. Initially the scale was Rs. 660. 00 to 1400. 00 and it was revised to Rs. 1820. 00 to 3200. 00. The Petitioner was confirmed in the post of coordinator by a Government Notification dated 4. 8. 1983. Though the Petitioner was holding the post of Coordinator, it has been alleged that he was not given the scale prescribed for the lowest gazetted officers inspite of repeated representations and demands made in this respect. It has been contended that in the past many graduate teachers appointed as coordinator were given the lowest gazetted scale either initially or within a year or two, the Petitioner cited a few examples where teachers joining as Coordinators long after the date of joining of the Petitioner as Coordinator were not only given a higher scale of pay but were also promoted to the post of deputy Director. The allegation of the Petitioner is that discrimination was made in his case and he was not treated identically with other officers of his grade and rank and in that manner gross discrimination was made.
( 3 ) IT has further been contended on behalf of the Petitioner that he suddenly discovered that his name appears in the combined seniority list of A. E. O. , A. P. O. , D. S. O and equivalent. The Petitioner never worked in any of these capacities nor he enjoyed any fringe benefits available to the A. E. Os. The petitioner has, therefore, prayed for a suitable writ declaring that the Petitioner is entitled to the scale of Coordinator with effect from 18. 6. 1983. He also claims seniority in the cadre of Coordinator with effect from the aforesaid date and for consequential benefits based on such seniority.
( 4 ) THE prayer of the Petitioner is opposed on behalf of the State Respondents. The contention of the Respondents is that the application is hopelessly barred by limitation as on account of delay caused by the Petitioner to approach the court for his redress some rights have accrued to the other persons by this time. Further case of the Respondents is that those who were given the gazetted scale for working as Cpordinator were Post graduate Teachers with scale of pay identical to that of Coordinators. Respondents contend that normally for entering into the gazetted scale one is to go through the selection process as prescribed by the Slkkim Service rules. Therefore the Petitioner is to go through that process for getting gazetted status and scale. Post Graduate Teachers need not pass through the above described process as they were already in the scale identical to that of coordinator.
( 5 ) IN this Writ Petition we are to see if discrimination was made in respect to the petitioner unlawfully and in mala fide manner.
( 6 ) JUST a few days back this court decided (Ram Bilash Kumar v. State of Sikkim)where facts and the points involved were the same as in the instant case. In Ram Bilash kumar's case this court observed that there was distinction between scale and status which the Education Department could not appreciate properly. Since the question of equal pay for equal work was not agitated in that case, it was held by this court that the Petitioner was eligible for the seniority as Coordinator from the date of his joining the post of Coordinator. But for the purpose of eligibility of lowest gazetted scale effect was given from the date on which the Petitioner first raised his voice of protest and made the representation.
( 7 ) IN the aforesaid case we find that the petitioner never applied for nor opted for or appointed as AEO or APO. We also obs
