1. Notice. Mr. Ravi Chauhan, learned Deputy Advocate General, appears and waives service of notice on behalf of the respondents.

2. With the consent of the parties, the instant writ petition is taken up for disposal, at this stage, in view of the order intended to be passed herein.

3. The petitioners have filed the instant petition with the following reliefs:-

"(a) That an appropriate writ be issued, directing the respondents to release revised pay scale to the Petitioners with the basic pay grade Rs. 5480-8925/- along with all other consequential benefits.

(b) That further the respondents be also directed to evaluate the Pension of the Petitioners who are now retired (Petitioner No. 5-7) as in accordance with the revised pay scale."

4. The petitioners are working as Language Teachers and Shastri Teachers in the Classical/Vernacular Cadre of the Elementary Education Department of the State Government in between the period from 1992 to 2002 as detailed in Para-3 of the writ petition.

5. The grievance of the petitioners is that they were initially given pay scale of Rs. 1500-2700/-, whereas, in accordance with the then existing Himachal Pradesh Civil Services (Revised Pay) Rules, the petitioners entitled to the pay scale of Rs. 1640-2925/-, but the case of the petitioners is that though the Revised-Higher Pay Scale of Rs. 1640-2925/- has been given to the similarly placed incumbents, in terms of the judgment passed in CWP(T) No. 5759 of 2008, titled as Subhash Chand and another Versus State of Himachal Pradesh and others, decided on 05.07.2010, then, the petitioners being similarly placed, are also entitled to the same benefits.

6. Mr. Sarthak Mehta, learned counsel for the petitioners places reliance on the judgment passed by this Court in CWP No. 3341 of 2019, titled as Madan Lal Versus State of Himachal Pradesh and another, decided on 04.09.2021, Annexure P-4, wherein, as per Mr. Sarthak Mehta, learned counsel, the benefit of revised pay scale of Rs. 1640-2935/- has been given to Language Teachers and Shastri Teachers, i.e. to the similarly incumbents from the date the aforesaid scale was revised by the State Government. Reference is made to Paras-6 to 12 of the judgment in the case of Madan Lal Sharma, which reads as under:-

"6. Having heard learned counsel representing the parties and perused material available on record, this Court finds that there is no dispute inter se parties that prior to taking over of the school by Government of Himachal Pradesh in the year 1990, petitioner was serving as Shastri teacher in Indira Gandhi Memorial Middle School Amlehar, Tehsil Nadaun, District Hamirpur. It is also not in dispute that since services of the petitioner were not taken over, he was compelled to approach this Court by way of CWP (T) No. 5 of 2012 and this Court vide judgment dated 12th October, 2012, issued direction to the respondents to appoint petitioner as Shastri w.e.f. 27.8.1990, the date when Indira Gandhi Memorial Middle School, Amlehar, District Hamirpur, Himachal Pradesh was taken over with all consequential benefits.

7. It is also not in dispute that aforesaid judgment was not laid challenge, rather respondent complying with the aforesaid directions contained in the aforesaid judgment taken over the services of the petitioner as Shastri teacher on regular basis in the pay scale of Rs. of Rs. 1500-2700 w.e.f. 27.8.90, Rs. 5000-8100 w.e.f.01.01.96 and Rs. 10300-34800+3200 Grade Pay w.e.f. 01.01.2006 w.e.f.27.08.1990, as is evident from office order, dated 21.9.2015 (Annexure P-2). Since services of the petitioner vide order, dated 21.9.2015 (Annexure P-2) were ordered to be taken over on regular basis w.e.f. 27.8.1990 i.e. the date when Indira Gandhi Memorial Middle School Amlehar, District Hamirpur was taken over, he claimed pay scale of Rs. 1640-2925, which at that time was being paid to the regularly appointed Shastries in the Department of education. However, such plea of him was rejected on the ground that since services of the petitioner was taken over after 23.3.1989, pay scale implemented prior to the same vide Notification dated 7.11.1988 (Annexure PR-1) cannot be made applicable in the case of the petitioner. However, such plea taken by the respondent in case of other similarly situate person was not accepted by the competent court of law in CWP(T) No. 5759 of 2008 titled as Subhash Chand versus State of Himachal Pradesh and others and as such, Tribunal below while placing reliance upon the judgment rendered by this Court in aforesaid case of Subhash Chand, directed the respondent-department to consider and decide the case of petitioner in the light of observations/findings returned in the aforesaid judgment passed by this Court in Subhash Chand's case (supra). Competent authority again vide order dated 4.9.2019, rejected the prayer made on behalf of petitioner for grant of pay scale of Rs. 1640-2925 on the ground that judgment passed by this Court in Subhash Chand's case (supra) cannot be made applicable in the case of the petitioner since he was appointed/taken over after 23.3.1989.

8. Order dated 4.9.2019 (Annexure P-5), passed by competent authority of law in purported compliance of order passed by learned Tribunal in Original Application No. 7779 of 2018, decided on 10.01.2019 is not sustainable in the eye of law for the reason that same is not based upon proper appreciation of law laid down by this Court in Subhash Chand's case (supra), wherein it has been categorically held that administrative instructions, if any, issued cannot supersede rules framed under Article 309 of the Constitution of India. In Subhash Chand's case (supra), Co-ordinate Bench of this Court categorically ruled that if particular pay scale is prescribed for a particular post under R&P Rules, same cannot be superseded/taken over by mere issuance of administrative instructions (Annexure P-6).

9. Order dated 4.9.2019, passed by Deputy Director Elementary Education otherwise contains no reason for rejection of the case of the petitioner. Competent authority has simply stated that case of the petitioner is not similar to that of CWP(T) No. 5759 of 2008 i.e. Subhash Chand and another. Had the competent authority bothered to go through the judgment passed by Co-ordinate Bench of this Court in its entirety, probably it would not have passed order dated 4.9.2019, which is impugned in the instant proceedings. Since there was specific direction to the competent authority to consider the case of the petitioner in the light of judgment passed by Co-ordinate Bench of this Court in CWP(T) No. 5759 of 2018, it was under obligation to pass detailed order, specifically assigning therein reasons that why the case of the petitioner is not similar to that of Subhash Chand case (supra). Since Co-ordinate Bench of this Court in Subhash Chand case (supra) has already held that administrative instructions, if any, issued cannot supersede the rules framed under Article 309 of Constitution of India, respondent-department could not have denied the pay scale, to which petitioner is otherwise entitled in terms of R& P Rules qua the post in question.

10. In the case at hand, reply filed on behalf of respondents No. 1 and 2, reveals that Government of Himachal Pradesh vide letter No. Shiksha-IIKha(4)3/89, dated 17.12.1991 clarified that those Shastries/Language Teachers, who were working on regular basis up to 23.03.1989, would be granted pay scale of s.1640-2925 as a measure personal to the incumbents, but once aforesaid pay scale of Rs. 1640-2925 has been specifically provided vide Notification dated 7.11.1988 (Annexure PR-1), issued in exercise of power conferred under Section(sic article) 309 of the Constitution of India and proviso to sub rule (1) of Rule 10 of the Vidhan Sabha( Recruitment and condition of service) Rules 1972, it is not understood that how aforesaid pay scale could be denied to the petitioner as well as other similar situate persons on the basis of clarification issued by the Government of Himachal Pradesh vide letter dated 17.12.1991, as has been taken note hereinabove. Perusal of aforesaid Notification dated 7.11.1988 (Annexure PR-1), reveals that though pay scales of Rs. 1640-2925, Rs. 1800-3200, senior scale after 8 years, Rs. 2000-3500 senior scale after 18 years shall be a measure personal to the present incumbents. i.e., persons already rendering services at the time of issuance of notification, but in future masters (TGT) shall be appointed as Language masters.

11. Respondents in their reply have stated that since the petitioner has not annexed any record regarding his qualification as Shiksha Shastri or Shastri with O.T(Sanskrit)/B.Ed or B.A B.Ed having Sanskrit as an elective subject in BA and B. Ed with Sanskrit thus the pay scale of Rs. 1500-2700/- as allowed to all other Shastries and Language teachers (Annexure R-1) cannot be allowed to him. However, this Court is of the view that aforesaid plea raised by the respondents cannot be allowed at this stage, especially when there is no dispute that services of the petitioner were taken over as Shastri w.e.f. 27.8.1990, may be pursuant to the directions issued by Co-ordinate Bench of this Court in Subhash Chand's case (supra). Since, it is not in dispute that services of only those teachers, who were fully qualified were to be taken over, plea of qualification as has been raised at this stage by way of reply otherwise cannot be allowed to be raised with a view to defeat the legible claim of the petitioner. Since, services of the petitioner stands regularized/taken over as Shastri, he is entitled to pay scale of the post in question, as prescribed in the R & P Rules. Aforesaid pay scale cannot be denied on the basis of the clarification issued by way of administrative instructions. It is well settled that statutory rules framed under Article 309 of Constitution of India cannot be superseded/ substituted by issuance of administrative instructions, as has been held by Co-ordinate Bench of this Court in Subhash Chand case (supra).

12. Consequently, in view of the detailed discussion made hereinabove, this Court finds merit in the present petition and accordingly same is allowed and order dated 4.9.2019 (Annexure P-5), passed by Deputy Director Elementary Education Kangra at Dharamshala, is quashed and set aside and respondents are directed to grant pay scale of Rs. 1640 to 2925/- to the petitioner with further revised pay scale from the date of taking over his services w.e.f.27.8.1990. Needful in terms of aforesaid directions issued by this Court shall be done expeditiously, preferably within a period of six weeks. Pending applications, if any, also stands disposed of."

7. In the above background, claim of the petitioners, is that the respondents have denied the benefit of higher pay scale of Rs. 1640-2925/- to the petitioners, flowing from Himachal Pradesh Civil Services (Revised Pay) Rules, which were applicable and the benefit of this pay scale has been given to the similarly placed Language Teachers and Shastri Teachers by the respondents. He submits that denial of higher pay scale of Rs. 1640-2925/- has resulted in depriving the petitioners of higher pay, including benefit of higher pay scale of every revision of pay scales, so given by the respondents, w.e.f. 01.01.1996, 01.01.2006 and 01.01.2016 and the same is recurring loss till day.

8. Mr. Ravi Chauhan, learned Deputy Advocate General, submits that the petitioners have come up before this Court, without ventilating/ascertaining their grievances/ claims before the competent authority. This plea of the learned State Counsel has force, for the reason, that once the petitioners are seeking mandamus then, unless and until they ventilate and establish a right with the authorities concerned; therefore, as per him, the petition is not entertainable and when, the matter on facts needs to be examined by the authorities.

9. Faced with the situation, Mr. Sarthak Mehta, learned counsel for the petitioners, prays that the petitioners may be permitted to make representation(s) before Respondent No. 2-Director, Higher Education, Himachal Pradesh, within stipulated period. Prayer so made being innocuous, is not opposed by the learned State Counsel also and is accordingly granted.

10. In the entirety of the facts and circumstances, as referred to above, this Court permits the petitioners to make representation(s) [jointly or separately] to Respondent No. 2-Director, Higher Education, Himachal Pradesh, within three weeks from today; with further directions to the aforesaid respondent to consider/examine the representation(s) and pass appropriate orders in the matter, within six weeks thereafter, in the light of the mandate of law, in the cases of Subhash Chand and Madan Lal Sharma (supra) within the above period.

11. Needless to say that, this Court has not adverted to the merits of the matter and all Questions of facts and law are left open.

12. In aforesaid terms, the writ petition as well as the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.