Smt. Shailaja W/O Arunrao Nandurkar Vs. Deputy Director of Education and Others - Court Judgment

Excerpt:
the case dealt with the effect of absorption of head teacher in lower pay scale - the head teacher on derecognisation of school was absorbed in middle school at lower pay scale of rs. 290-540 but was given protection in her salary last drawn at rs. 540 - it was objected by the auditor, who directed the pay to be refixed in lower scale and as the consequence the school management lowered the pay - it was held that when incumbent had already suffered demotion in scale and was specifically given protection of pay, the pay ought not to have been lowered on mere objection of the auditor therefore, the petition was allowed, restoring the pay. - - the aforesaid details clearly indicate that because of the derecognition of the high school where she was working on the higher scale, when she was forced to go for the job with lower scale, least that was expected was to protect her pay and that was done and we fail to see how the said order of appointment is sought to be interpreted as letter meant for that session only.ordern.j. pandya, j. 1. the petitioner who was working as a high school teacher in bharti vidyalaya, babulkheda nagpur from 1-7-1974, continued to do so up to 5-12-1982 the date of de-recognition. as a result, question arose as to her absorption in any other school.2. on the strength of the discharge certificate (appendix-7-annex, i) her case had to be considered. so far as the salary is concerned, she was getting rs, 540/- as salary in the pay scale of rs. 365-15-500-20 ext. 20-760/-.3. she came to be absorbed in nagpur madhyamik vidyalaya, as per letter dtd. 7-3-83 (annex, iv, page 15). it being a madhyamik vidyalaya, the aforesaid pay scale of rs. 365 -760 not being available, she was absorbed in the middle school in the pay scale of rs. 290-10-390 -15-540/- w.e.f. 6-12-82 as per the order of the education officer.4. it has been categorically stated in the letter annex, iv, page 15 that her last drawn pay as per discharged certificate is protected and she is getting that salary w.e.f. 6-12-82. this letter is addressed to the said madyamik vidyalaya through its head master by the senior auditor of education department, nagpur district, nagpur.5. later on in course of audit being carried out of the said school, an objection seems to have been taken by the auditor that the petitioner having been taken in the said scale of rs. 290-540, her salary ought to have been fixed at rs. 420/- and, therefore, excess pay has to be recovered.6. once the decision is taken for protecting the pay and that action was justified in the back ground of the aforesaid facts and situation, only on the strength of the said audit objection obviously the pay which was protected that protection could not have been withdrawn and the salary could not have been revised by the department.7. in the return at page 23, para 3, there seems to be three grounds viz, 1) her appointment which was earlier in the pay scale of rs. 365-760/- on absorption it has been in the scale of rs. 290-540/-. further reliance is placed that the letter/approval dtd. 22-12-82 was for the session only which indicates that the education officer has never meant to absorb her in the said school in the said scale of rs. 290-540. the third ground is that the matter under consideration by way of this petition would be governed by m.e.p.s rules, 1981.8. about last mentioned ground, there can not be any quarrel though it will have no bearing on the controversy before us.9. so far as remaining two grounds are concerned, they would not stand moments scrutiny. the aforesaid details clearly indicate that because of the derecognition of the high school where she was working on the higher scale, when she was forced to go for the job with lower scale, least that was expected was to protect her pay and that was done and we fail to see how the said order of appointment is sought to be interpreted as letter meant for that session only. the petitioner has already lost higher pay scale which was admissible to her on her own qualification and merits in the said high school. by coming to the middle school on account of it's derecognition, this loss have been already suffered and having been forced to accept the lower scale, the exercise of pay protection was correctly carried and there was no basis whatsoever for the concerned auditor to raise objection and whatsoever for the department to take action on it. the petition is, therefore, allowed end the pay protected by the said order dtd. 22-12-82, is restored.10. it is directed that subsequent revision as and when done on the basis of the said protected pay of rs. 540/- p.m. all throughout and on that basis final retrial benefits will be calculated and given to her within the period of 6 months from the date of receipt of this order. rule is made absolute in aforesaid terms.11. petition allowed.

Judgment:
ORDER

N.J. Pandya, J.

1. The petitioner who was working as a High School Teacher in Bharti Vidyalaya, Babulkheda Nagpur from 1-7-1974, continued to do so up to 5-12-1982 the date of de-recognition. As a result, question arose as to her absorption in any other school.

2. On the strength of the discharge certificate (Appendix-7-Annex, I) her case had to be considered. So far as the salary is concerned, she was getting Rs, 540/- as salary in the pay scale of Rs. 365-15-500-20 Ext. 20-760/-.

3. She came to be absorbed in Nagpur Madhyamik Vidyalaya, as per letter dtd. 7-3-83 (Annex, IV, page 15). It being a Madhyamik Vidyalaya, the aforesaid pay scale of Rs. 365 -760 not being available, she was absorbed in the Middle School in the pay scale of Rs. 290-10-390 -15-540/- w.e.f. 6-12-82 as per the order of the Education Officer.

4. It has been categorically stated in the letter Annex, IV, page 15 that her last drawn pay as per discharged certificate is protected and she is getting that salary w.e.f. 6-12-82. This letter is addressed to the said Madyamik Vidyalaya through its Head Master by the Senior Auditor of Education Department, Nagpur District, Nagpur.

5. Later on in course of audit being carried out of the said school, an objection seems to have been taken by the auditor that the petitioner having been taken in the said scale of Rs. 290-540, her salary ought to have been fixed at Rs. 420/- and, therefore, excess pay has to be recovered.

6. Once the decision is taken for protecting the pay and that action was justified in the back ground of the aforesaid facts and situation, only on the strength of the said audit objection obviously the pay which was protected that protection could not have been withdrawn and the salary could not have been revised by the department.

7. In the Return at page 23, para 3, there seems to be three grounds viz, 1) her appointment which was earlier in the pay scale of Rs. 365-760/- on absorption it has been in the scale of Rs. 290-540/-. Further reliance is placed that the letter/approval dtd. 22-12-82 was for the session only which indicates that the Education Officer has never meant to absorb her in the said school in the said scale of Rs. 290-540. The third ground is that the matter under consideration by way of this petition would be governed by M.E.P.S Rules, 1981.

8. About last mentioned ground, there can not be any quarrel though it will have no bearing on the controversy before us.

9. So far as remaining two grounds are concerned, they would not stand moments scrutiny. The aforesaid details clearly indicate that because of the derecognition of the High School where she was working on the higher scale, when she was forced to go for the job with lower scale, least that was expected was to protect her pay and that was done and we fail to see how the said order of appointment is sought to be interpreted as letter meant for that session only. The petitioner has already lost higher pay scale which was admissible to her on her own qualification and merits in the said High School. By coming to the Middle School on account of it's derecognition, this loss have been already suffered and having been forced to accept the lower scale, the exercise of pay protection was correctly carried and there was no basis whatsoever for the concerned auditor to raise objection and whatsoever for the department to take action on it. The petition is, therefore, allowed end the pay protected by the said order dtd. 22-12-82, is restored.

10. It is directed that subsequent revision as and when done on the basis of the said protected pay of Rs. 540/- p.m. all throughout and on that basis final retrial benefits will be calculated and given to her within the period of 6 months from the date of receipt of this order. Rule is made absolute in aforesaid terms.

11. Petition allowed.