Jyotsna Rewal Dua, J. -
(1.)These writ petitions involve common question of law and facts, hence are taken up together for adjudication.
For convenience and clarity, facts of CWP 2411 of 2019 are being considered.
2(i) Petitioner did his Shastri from H.P. University and became eligible for appointment as Shastri Teacher. State took a decision to appoint all those who were eligible to be appointed as, Trained Graduate Teachers, OTs, Shastris against the sanctioned vacant posts of Junior Basic Teachers (in short JBTs). Petitioner being eligible also applied for the post of JBT. He eventually emerged successful in the selection criteria laid down by the State and was appointed as JBT on contract basis on 7.8.1997 on fixed monthly honorarium. His services were regularized on 10.07.2006 w.e.f. 1.1.2006. The service of the petitioner w.e.f. 7.8.1997 to 10.07.2006 has not been counted for the purposes of pay scale, annual increments, seniority, promotion, pension under CCS(Pension) Rules, 1972, GPF etc.
2(ii) State came up with 'Vidya Upasak Yojna' in 1998. Under this scheme, vacant posts of teachers in Government Primary Schools were filled up in the year 2000 by appointing Vidya Upasaks in accordance with selection criteria laid down in the said scheme. Vidya Upasaks, under the scheme were to be initially recruited for a period of one year, extendable on the basis of performance and approval of competent authority. They were to be paid fixed monthly honorarium. Services of Vidya Upasaks were regularized as JBTs in 2007 after awarding them special JBT Certificates and they were placed in pay scale of Rs. 4500-7200. Services of Vidya Upasaks w.e.f. their initial dates of appointment till regularization were not counted towards annual increments, pension under CCS(Pension) Rules 1972, promotions, pay scales, seniority etc.
2(iii)(a) CWP No.8953 of 2013 titled as Joga Singh and Others vs. State of H.P. and Others along with connected matters was filed by some Vidya Upasaks, praying that service rendered by them from the date of their initial appointment as Vidya Upasaks is required to be counted as qualifying service for purpose of pension under CCS(Pension) Rules 1972, annual increments, seniority, promotions etc. This prayer was opposed by the State on various grounds. One of the contentions raised by the State was that Vidya Upasaks were regularized in 2007, whereas Contributory Pension Scheme was introduced in the State w.e.f. 15.05.2003, therefore, Vidya Upasaks were not entitled to count their services from the dates of their initial appointment as Vidya Upasaks for grant of pension under CCS(Pension) Rules, 1972, annual increments and GPF. All those who were appointed after 15.05.2003, are entitled only to Contributory Provident Funds (CPF). Vidya Upasaks having been regularized in 2007 are also entitled only to CPF.
2(iii)(b) While deciding the writ petition, the Court went through all the contentions raised by the Vidya Upasaks as well as defence of the State Government. It took note of the fact that Vidya Upasaks were discharging same and similar duties being discharged by the regularly appointed teachers; they were appointed under a selection process; their services were continued without any break right from the dates of their appointment as Vidya Upasaks till the date of their regularization; Vidya Upasaks were appointed against the regular posts. Finally, vide judgment dated 15.6.2015, it was held that the entire period from the date of initial appointment as Vidya Upasak till the date of their regularization shall be counted as qualifying service for purpose of pension under Central Civil Services (Pension) Rules, 1972 as well as for the purpose of annual increments.
2(iii)(c) Special Leave Petition No. 183/2016 filed against the judgment delivered on 15.6.2015 in CWP No. 8953 of 2013 titled as Joga Singh and Others vs. State of H.P. and Others alongwith connected matters was dismissed by the Hon'ble Apex Court on 4.1.2016 with following order.
We are not inclined to entertain this special leave petition, which is dismissed.
Pending application(s), if any, shall stand disposed of."
Review Petition (c) No.274/2017 preferred by State against dismissal of SLP was also dismissed on 2.3.2017 with following order:-
"The Review Petition is directed against order dated 4.1.2016 whereby special leave petition was dismissed. There is delay of 300 days in filing the Review Petition for which no satisfactory explanation has been given. Even otherwise, we see no reason to entertain the Review Petition. The Review Petition is dismissed on ground of delay as well as on merits."
The judgment delivered in Joga Singh's case, thus attained finality. Respondent-State on 13.9.2017, conveyed its approval for implementing the decision in Joga Singh's case.
2(iv) Since, Joga Singh and other similarly situated Vidya Upasaks were conferred the benefit of their past service as Vidya Upasks for the purposes of pension under CCS(Pension) Rules, 1972 and annual increments, therefore, on the same analogy, petitioner filed his own independent Original Application No.3796 of 2018 before learned erstwhile H.P. State Administrative Tribunal. Learned Tribunal vide its order dated 4.7.2018 disposed of the Original Application by directing the competent authority to grant benefit of Joga Singh's judgment to the petitioner after verifying his claim of being similarly situated. The representation of the petitioner was rejected by the Deputy Director of Elementary Education vide order dated 8.7.2019 on the ground :-
"As per the record received from BEEO Kandaghat shows that the petitioner is not similar situated to CWP No. 8953/2013 titled as Joga Singh and Others Vs. State. The matter is quite different in compare to Joga Singh. However, the petitioner was contract appointee whereas Joga Singh and Others were appointed as Vidya Upasak.
In view of the facts and circumstances explained above the petitioner is not similar situated to CWP No. 8953/2013 titled as Joga Singh and Others Vs. State. So the benefit required cannot be extended to the petitioner at this level stage."
2(v) Since, H.P. State Administrative Tribunal now stand abolished, hence, instant writ petition has been preferred seeking direction to the respondents to count the service rendered by the petitioner on contract basis against the post of JBT w.e.f. 7.8.1997 for the purposes of pension under CCS(Pension) Rules, 1972, annual increments, seniority, promotion and other consequential benefits on the basis of law laid down in Joga Singh's case supra.
(3.)We have heard learned counsel for the parties and gone through the record.
3(i) Learned counsel for the petitioner made following submissions:-
3(i)(a) Joga Singh and other similarly situated Vidya Upasaks, who were appointed under 'Vidya Upasak Yojna' in the year 2000 were junior to the petitioner and other similarly situated JBTs appointed prior to them, on contract basis.
3(i)(b) Vidya Upasaks were regularized as JBTs in 2007 after awarding them special JBT Certificate, whereas, petitioner appointed as JBT on contract basis was regularized in 2006. Thus, even the regularization of the petitioner as JBT was prior in time to that of Joga Singh and other similarly situated Vidya Upasaks. Petitioner was, thus, senior to Joga Singh and other similarly situated Vidya Upasaks in the cadre of JBTs.
3(i)(c) Counting of entire service of Joga Singh and other similarly situated Vidya Upasaks right from their dates of appointment as Vidya Upasaks for grant of pension and annual increments to them has virtually made them seniors to their actual seniors/petitioners and other similarly situated JBTs. This has resulted in discrimination as the senior JBTs (petitioners) have been denied the benefit of counting their past service on contract basis towards pension and annual increments, whereas this benefit has been granted to their juniors (Vidya Upasaks).
3(ii). Learned Advocate General has opposed the prayers of the petitioner on the grounds that :-
(a) Original Application No. 3796/2018 filed by the petitioner for counting his entire JBT service for pensionary benefits under CCS(Pension) Rules & annual increments was barred by limitation prescribed under Section 21 of The Administrative Tribunals Act, 1985. Decision by the Competent Authority on the belated representation preferred by petitioner, will not extend the limitation period.
(b) It has also been argued that instant writ petition under Section 226 of the Constitution of India also suffers from delay, laches and estoppel.
(c) Another contention raised by learned Advocate General is that judgment in Joga Singh's case does not lay down correct law. It is open for the State to question this judgment in the instant writ petitions, which, in essence are seeking its applicability.