JUDGEMENT
PRAKASH D.NAIK,J. -
(1.)This petition is preferred under Article 226 of the
Constitution of India and petitioner seeks issuance of writ of
certiorari or a writ of mandamus or any other appropriate writ,
order or directions, declaring that the respondents to count the
services of the petitioner from 1980 instead of 1984 onwards for
the purpose of grant of selection grade. It is also prayed that the
respondents may be directed to fix the petitioner's pay scale from
the date of the first appointment of 1980 as mentioned in the
service book of the petitioner and order and direct the
respondents to pay the salary as per the selection grade from
June 2004. The petitioner also seeks injunction of this Court from
preventing the respondents from recoveries being made at the
instance of the petitioner.
(2.)The factual matrix as contended by petitioner, for considering the issues involved in this petition is as follows:
(a) The petitioner is a teacher. He joined St.George School, Malad, Mumbai on undergraduate scale for a period of one year during the year 19791980. Thereafter, from the year 1980 to 1984 for a period of four years, the petitioner worked on the basis of trained graduate scale in the same School. According to the petitioner, there was no break in his service when the petitioner joined the 4 th respondent school in the year 1984, as an Assistant Teacher.
(b) The petitioner contends that he completed 12 years of service in the 4th respondent school in 1992. For the purpose of counting 12 years, four years service in St.George School was also considered. On the basis of the said computation the petitioner was given the senior scale in the year 1992. He was due for the selection grade in the year 2004, but it was denied on the ground that four years service in the unaided school is not required to be counted. When the petitioner pointed out that he was already given the senior scale in the year 1992 on the basis of the said four years of service in St.George School, Malad, Mumbai, the Education Department had contended that the same was given by mistake.
(c) The petitioner wrote letter dated 6 th April, 2005, addressed to the 3rd respondent, Educational Inspector, placing the facts on record. In the said letter, it was contended that after devoting 20 years of continuous service, he was entitled for the selection grade. The Education Department contended that the senior scale was given to the petitioner by mistake and the recoveries will have to be made. In the said letter the petitioner had contended that he was entitled to the selection grade vide circular dated 9th December, 2004.
(d) The respondent no.2, by letter dated 18th October, 2005, informed the petitioner that his pay will have to be refixed in accordance with the 5th pay commission report and the pay revision be made. It was also stated that such a decision was arrived at by the working group in its meeting held on 26th September, 2005. The accounts Officer (Education) was directed to take necessary action. It was stated that the petitioner's service in the unaided school cannot be taken into consideration for grant of senior scale.
(e) The petitioner then sent an advocate's notice dated 24th December, 2005, which was addressed to respondent nos.2 and 3. In the said notice, it was stated that the grievance of the petitioner may be dealt with or else the petitioner will be constrained to initiate the legal proceedings.
(3.)The learned counsel for the petitioner submitted that the petitioner was rightly given the senior scale in 1992 on the
basis of 12 years of service counting his four years of service
rendered in the previous school. It is submitted that the
petitioner relies upon the circular dated 26 th July, 1973, wherein it
is mentioned that the past service in an unaided school is to be
counted for the purpose of seniority and for the purpose of pay
fixation. It is a settled principle of law that for all purposes the
date of joining of service in a school is to be considered for the
purpose of fixation of pay, grant of senior scale etc. The petitioner
having been given the senior scale in 1992, it is not open to the
respondents to contend that for the selection grade the same
principle will not be applied. The counsel further submitted that
the impugned decision communicated vide letter dated 18 th
October, 2005 is contrary to the well established principles of law.
It is submitted that in the service book of the petitioner, there is a
mention of four years of service in St.George School, Malad,
Mumbai. According to service book there is no break in service
and, hence, the petitioner is perfectly justified in contending that
the pay fixation should be based on the first date of appointment
in the St.George school, though, it was an unaided school. It is
submitted that what is to be considered is that the said school
was recognized but unaided. Whether the school is aided or
unaided is totally immaterial if the concerned school is
recognized by the Government. Looking from any angle the four
years service in St.George school cannot be excluded for the
purpose of counting the service for pay fixation. It is also
submitted that the respondents be prevented from claiming any
amount by way of difference for having paid the salary as per the
senior scale. The respondents have no right to refix the pay or
seniority or make recoveries from the petitioner. It is submitted
that the petitioner is entitled to the salary according to the
selection grade from June 2004. Inspite of the repeated request
the salary has not been fixed after giving him the selection grade.
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