GYAN SUDHA MISRA,J. - (1.) THIS is a very hard case of a blind but self sufficient man - the petitioner herein, who was appointed against handicapped quota, on the post of Music Teacher and is presently serving at Government Primary School, Karauli, Sawai Madhopur. He has filed this, writ petition on the ground that he is being denied the regular scale of pay of Teacher Gr. III ever since his appointment on 21.1.80.
(2.) THE petitioner had passed the Secondary School Examination from the Board of Secondary Education Rajasthan, Ajmer in the year 1980 and thereafter he took Diploma course in Music from the Prayag Sangeet Samiti, Allahabad. He was thereafter appointed as a Music Teacher in the Government Primary School, Kota by order dated 28.1.80 in the scale of 3rd Grade 355 -570 and his services were extended from time to time, ultimately upto 30.4.80 or until further orders vide order No. 5361 dated 11.7.1980. The petitioner Joined the post on 31.9.80 and has been continuously working since then as Music Teacher in the Government Primary School, Karauli. But even after 15 years of service, the petitioner has not been allowed the regular scale of teacher Gr.III and is being paid a consolidated salary of Rs 300/ - only , although his appointment was made as Teacher Gr. III in the pay scale of Rs. 355 -570. It further appears that the pay scale of Teacher Gr. III had been revised in 1981 and 1986 and thereafter in 1989 , but the same has not been made effective in the case of the petitioner even in the year 1990, although it is the case of the petitioner that the Government of Rajasthan has recognised the Diploma Course in Music from the Prayag Sangeet Samiti, Allahabad vide order No. F. 9 (67)/3/71 dated 27.6.1973 and also recognised this diploma equivalent to Basic school Training Course (BSTC) if a person had passed the above diploma and was High School pass they were allowed the pay scale of Teacher Gr. III vide order No. HAD/KI/75 dated 11.1.74. In view of this, the petitioner represented his case before the competent authority for grant of regular scale of pay for Teacher Gr. III. Although, he was assured of favourable consideration, but no result ultimately came out, due to which the petitioner was compelled to file this writ petition to this Court, wherein it has been contended that the petitioner should be granted the benefit of regular scale of pay while recognising the principle of equal pay for equal work as he is possessed with the requisite qualification of Teacher Gr. III and had also been functioning in that capacity as Music Teacher and was also appointed as Music Teacher in the pay scale of Rs 355 -570 on 31.9.1980 against the quota of handicapped persons. Hence, allowing him only fixed salary of Rs 300/ - per month is a gross discrimination to which he has been subjected. In support of the writ petition, he has also cited the case of Surendra Singh v. The Engineer -in -Charge, CPWD : (1986)ILLJ403SC , wherein the learned Judges upheld the doctrine of equal pay for equal work holding therein that if two classes of parsons put the same work under the same employer with the same responsibility under similar working conditions, he cannot be denied the equal pay. Another case of Smt. Prem Kumari v. state of Rajasthan and Ors. CSBCWP No. 11/1989) decided on 21.8.1989 has also been relied upon. It is, therefore, submitted by the learned Counsel for the petitioner that the petitioner should not be compelled to face stagnation in the fixed salary of Rs. 300/ - per month especially in view of the fact that the salary of Teacher Gr. III has been revised on three occasions. Learned Counsel for the respondent, Shri J.M. Saxena vehemently contested the grant of regular scale of pay to the petitioner on the ground that the petitioner is an untrained teacher and no provision was made at the time of pay fixation in the year 1981 for such teachers. The petitioner, therefore, according to him, is not entitled for regular scale of pay even though, it has been accepted that he has been discharging the duty of Teacher Gr. III ever since his appointment. On having been confronted with the query of the Court as to how the petitioner could be deprived of the benefit of the regular scale of pay of Teacher Gr. III when he has been discharging his duties in that capacity ever since his appointment and has also been appointed in the scale of Rs 355 -570 on the basis of well recognised principle of equal pay for equal work, he ultimately conceded that the petitioner to entitled to be placed in the regular pay scale of Teacher Gr. III. Even otherwise, it is quite clear that there cannot possibly be any Just and legal reason to deny this scale of pay to the petitioner especially when his initial appointment itself indicates that he was put in the scale of Rs 355 -570. Merely because the pay fixation committee did not make any provision for fixation of scale of pay of untrained teachers, although the Government took the work from the petitioner in the capacity of Teacher Gr. III for a long number of years, the regular scale of pay cannot be denied on the said ground. Even if it is accepted that the petitioner was not duly qualified to work as Teacher Gr. III,.yet allowing him to work as Teacher Gr. III for unlimited number of years amounts to relaxation of the essential qualification of such appointment by the Government, in my view. Hence, I find no merit in so far as this objection is concerned and the respondent State cannot be allowed to raise the objection of such nature so as to justify working of the petitioner on consolidated salary for his entire service period. In course of arguments, it was also informed by Shri Saxena that the petitioner is not getting only Rs. 300/ - but he is also getting deamess allowance on the basis of some scale of pay, about which he showed his ignorance and, on that basis also it can be presumed that the petitioner is getting the salary at least on the basis of minimum scale of pay for Teacher Gr. III which is the lowest post of Teacher. If this is so, it is an additional reason to hold that the petitioner ought to be held entitled for regular scale of pay of Teacher Gr. III at least from the year 1989, from the date when the pay fixation was made effective for the third time, the petitioner has been allowed deadness allowance, It is clear that it must have on the basis of some scale of poay and if the same is granted, I see no justification why regular pay scale of Teacher Gr. III should not have been given to the petitioner. The petitioner, therefore, is directed to be put in the regular scale of pay of Teacher Gr. III with all incidental admissible allowance.
(3.) NOW , the only question which requires to be considered is regarding the date from which the petitioner may be given the arrears of salary. The petitioner, in my view, normally should have been fully entitled to receive the arrears of salary ever since the date of his appointment. But since admittedly he had been working in the category of untrained teacher and there was some ambiguity about his essential qualification for the post which is ultimately held to be recognised in the category of Teacher Gr. III only due to passabe of time, he should be held entitled for arrears of salary when the third pay fixation in the year 1989 was made effective as the Government left the fate of a particular category of teacher to hang in balance by not providing any scale for them and yet taking work from them of an exactly similar nature which was discharged by Teacher Gr. III. Since the exact date from which the scale of pay was made effective has not been given, the respondents are directed to grant the petitioner the arrears of salary of Teacher Gr.,III when the Third Revision was made effective in regard to such Teacher after deducting the amount of salary, DA and other allowances which he might have ready received. The arrears of salary should be paid to the petitioner within a period of four months from the date of receipt of this order. The respondents are also directed to pass formal order indicating that the petitioner has been put in the regular scale of pay of Teacher Gr. III and shall also file an affidavit in this Court after making payment of arrears of salary. It is made clear that the petitioner shall now continue to be paid the regular scale of pay and all emoluments from 1.5.1995.;