1. Vide this order, above mentioned petitions would be disposed of as they involve common issue/controversy.

2. The controversy involved in the present cases is as to whether Trained Graduate Teachers working in the department of Education in the Government of Himachal Pradesh, who were initially promoted as lecturers and were thereafter promoted as Headmasters/Headmistress were entitled to protection of their pay scales drawn by them as lecturers at the time of their promotion as Headmasters/Headmistress or their pay was to be fixed by presuming them to be working as Trained Graduate Teachers.

3. Admittedly, the post of Headmasters/Headmistress are to be filled up 100% by promotion from amongst Trained Graduate Teachers. So far as the post of lecturers is concerned, the same are to be filled-in 50% by promotion and 50% by direct recruitment. Promotion is to be made from amongst Trained Graduate Teachers. The Trained Graduate Teachers would, thus, have two avenues of promotion. Those teachers, who have obtained Master’s degree, were eligible to be considered both for the post of Headmasters/ Headmistress as well as lecturers. However, those Trained Graduate Teachers, who do not have Master’s degree, could only be considered for promotion to the post of Headmasters/Headmistress.

4. After the year 2004, the Trained Graduate Teachers, who had been promoted as lecturers and had continued as such for many years, were also promoted as Headmasters/Headmistress. The Trained Graduate Teachers, who had not got Master’s degree, felt aggrieved as their chances for promotion to the post of Headmasters/ Headmistress had been diminished. In this regard CWP-T No.14932 of 2008, titled Neelam Kaushal versus State of H.P. & Others, was decided on 26th July, 2010, by learned Single Judge of this Court. Operative part of the order reads as under:-

“13. In view of the aforesaid discussion, this petition is disposed of with the following directions:

a. That no promotions made prior to 26th April 2010 shall be affected by the outcome of this petition. However, since the promotions made after 26th April,2010 were made expressly subject to the result of this petition they shall abide by the following directions.

b. That henceforth and w.e.f 26th April, 2010 before making any promotions to the post of Lecturers or Head Masters an option shall be sought from the concerned employee .

c. Once an employee gives an option he/she will not be permitted to change the option. d. Once an employee opts to be promoted as Lecturer/ Head Master he can not claim that he should be considered for the other post.

e. The Principal Secretary (Education) to the Government of Himachal Pradesh, the Director of Higher Education and Director of Elementary Education i.e respondents No. 1 to 3 are made personally responsible for compliance of these directions in letter and spirit.

f. All promotions, if any, made after 26th April,2010 shall be reviewed and after seeking options of the employees in terms of the aforesaid directions the promotions shall be made.”

5. Another controversy also arose with regard to various categories of teachers vis-à-vis promotion as Headmaster. A Division Bench of this Court in CWP No. 1545 of 2011 and connected matters, titled Vinod Kumar & Others versus State of H.P. & others, decided on 5th July, 2012, held as under:

“16. A combined reading of the judgment leaves no manner of doubt that if no option was taken from the TGTs who were promoted as Lecturers they would be justified in claiming that they should be considered for being appointed against the post of Headmaster. It has been brought to our notice that the Law Department has been giving contradictory opinion as to what is to be done. In our opinion, there is no ambiguity in the judgment and any law officer who tried to draw a different meaning from the judgment probably did not understand the judgment or gave the opinion for extraneous reasons. To set the record straight, we are clarifying that as per this judgment any TGT promoted as Lecturer prior to 26.4.2010 without obtaining option from him would be entitled to be considered for promotion against the post of Headmaster and can be promoted to the post of Headmaster on the basis of his position in the seniority list in the cadre of TGTs. Therefore, the State while making efforts to fill up the posts on the basis of promotion shall also consider the names of those TGTs who are promoted as Lecturers and from whom no option was taken.”

6. Thus, time and again there have arisen controversies with regard to the Trained Graduate Teachers relating to their promotion.

7. The cases, which are presently under consideration, involve Trained Graduate Teachers, who were initially promoted as Lecturers and have thereafter being promoted as Headmaster/ Headmistress. The department has fixed the pay scales of these Teachers, when they were promoted as Headmaster/Headmistress by treating their feeder cadre as Trained Graduate Teacher. The grievance of the Teachers is that they were promoted as Lecturers without taking any option from them and thereafter they have been promoted as Headmaster/Headmistress without taking any option from them. Thus, the grievance of the teachers, who were working as lecturers and were drawing higher pay than the pay fixed by the department at the time of their promotion as Headmaster/ Headmistress, is that their pay at the time of promotion could not be fixed at a lower scale than they were already drawing. The post of Headmaster/Headmistress involves higher responsibility. It is the submission of the teachers that their pay scales on promotion cannot be fixed to their disadvantage without obtaining any option from them.

8. State has filed two writ petitions against the orders passed by the Himachal Pradesh State Administrative Tribunal (hereinafter referred to as ‘the Tribunal’), whereas, along with these writ petitions filed by the State, connected writ petitions are the ones filed by the teachers seeking the same relief as was granted to their similarly situated colleagues by the Tribunal.

9. Learned Advocate General, at the very outset, has submitted that the applications filed by the petitioners before the Tribunal were time barred and were liable to be dismissed on the ground of limitation alone. He has placed reliance on the judgment of Hon’ble Supreme Court in D.C.S. Negi versus Union of India and Others, (2018) 16, Supreme Court Cases, 721, wherein it was held as under:

“13. A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21(1) or Section 21(2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21(1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21(3).”

10. Learned Advocate General has also placed reliance on the judgment of the Hon’ble Supreme Court in Prahlad Raut versus All India Institute of Medical Sciences, 2019 (11) Scale, 566, wherein it was held as under:

“32. Removal under Rule 19(i) of the CCS (CCA) Rules, 1965 entails the consequence of forfeiture of retiral benefits such as pension. The order of 6.01.2000 necessarily had to be challenged before the learned Tribunal within the period of limitation or alternatively the appellant would have to show sufficient cause for the delay in filing the Original Application beyond the period prescribed by limitation. The question of entitlement, if at all, of the appellant to gratuity and provident fund, notwithstanding his removal by the Memorandum dated 6.01.2000 was neither raised before nor considered by the learned Tribunal. Nor was the question considered by the High Court. The question cannot be raised at the stage of this appeal.”

11. On merits, learned Advocate General has submitted that in the present case, the relevant Fundamental Rule that was to be applied was F.R. 22 (IV). He has argued that as per the said Rule, the government servant, who was holding an ex cadre post and on his promotion, his pay was liable to be fixed only with reference to his presumptive pay in the cadre post which he would have held but for his holding any ex cadre post out side the ordinary line of service. He has further submitted that the feeder cadre for promotion to the post of Headmaster/Headmistress was Trained Graduate Teachers. Hence, the pay scale drawn by the teachers as Lecturers could not be taken in consideration while fixing their pay scales on promotion as Headmaster/Headmistress, as the post held by them as Lecturers was an ex cadre post.

12. Learned counsel for the teachers, on the other hand, have submitted that the Trained Graduate Teachers, had been promoted as lecturers without obtaining any option from them. A Trained Graduate Teacher could be promoted as a lecturer or as a Headmaster/ headmistress. After having worked as Lecturers for many years, the said teachers were then promoted as Headmaster/Headmistress, without obtaining any option from them. Hence, the pay scales of these teachers could not be fixed to their disadvantage and they could not be placed in a lower pay scale, at the time of their promotion to a post involving higher responsibility. Learned counsel have submitted that the pay scales of the teachers were liable to be fixed as per F.R. 22(I)(a)(1).

13. Learned Counsel have further submitted that the bar of limitation would not apply to the cases, where it involves continuing wrong/recurring cause of action. In support of their arguments they have placed reliance on the judgment of Hon’ble Supreme Court in State of Madhya Pradesh & Others versus Yogendra Shrivastava, (2010) 12 Supreme Court Cases, 538 , wherein it was held as under:-

“17. The appellants contended that the claims were therefore barred by limitation. It was pointed out that the respondents were paid NPA at a fixed rate as stipulated in the appointment orders and NPA was increased only when it was revised by Government orders from time to time; that the respondents accepted such NPA without protest; and that therefore, they cannot, after periods varying from 5 to 15 years, challenge the fixation of NPA or contend that they are entitled to NPA at a higher rate, that is 25% of their pay.

18. We cannot agree. Where the issue relates to payment or fixation of salary or any allowance, the challenge is not barred by limitation or the doctrine of laches, as the denial of benefit occurs every month when the salary is paid, thereby giving rise to a fresh cause of action, based on continuing wrong. Though the lesser payment may be a consequence of the error that was committed at the time of appointment, the claim for a higher allowance in accordance with the Rules (prospectively from the date of application) cannot be rejected merely because it arises from a wrong fixation made several years prior to the claim for correct payment. But in respect of grant of consequential relief of recovery of arrears for the past period, the principle relating to recurring and successive wrongs would apply. Therefore the consequential relief of payment of arrears will have to be restricted to a period of three years prior to the date of the original application. [See: M.R. Gupta vs. Union of India, 1995 (5) SCC 628, and Union of India vs. Tarsem Singh, 2008 (8) SCC 648]

14. F.R. 22 (I)(a) (1) reads as under:-

F.R. 22. (I) The initial pay of a Government servant who is appointed to a post on a time-scale of pay is regulated as follows:

(a) (1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfilment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the time-scale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by him regularly by an increment at the stage at which such pay has accrued or rupees one hundred only ], whichever is more.

15. F.R. 22 (IV) reads as under:-

(IV) Notwithstanding anything contained in this rule, where a Government servant holding an ex cadre post is promoted or appointed regularly to a post in his cadre, his pay in the cadre post will be fixed only with reference to his presumptive pay in the cadre post which he would have held but for his holding any ex cadre post outside the ordinary line of service by virtue of which he becomes eligible for such promotion or appointment.”

16. Admittedly, in all the cases Trained Graduate Teachers were promoted as Lecturers (School Cadre) and worked as such for number of years. Thereafter, they were promoted as Headmasters/ Headmistress. It is also not in dispute that no option was taken from the Teachers at the time of their promotion as lecturer or Headmaster/ Headmistress. The Trained Graduate Teacher could admittedly be promoted as a lecturer or as Headmaster/Headmistress. The trained Graduate Teachers, who had Master’s Degree, could be promoted as lecturer or Headmaster/Headmistress, whereas, the Trained Graduate Teachers, who did not possess Master’s degree, could only be promoted as Headmaster/Headmistress. In this situation, the argument raised by learned Advocate General to the effect that the Trained Graduate Teachers, who had been promoted as Lecturers, were liable to be considered as holding an ex cadre post is without any force. The promotion of Trained Graduate Teachers as Lecturers cannot be said to be promotion to any ex cadre post out side the ordinary line of service because admittedly a Trained Graduate Teacher, having master’s Degree, is entitled for promotion to the post of Lecturer. The department itself promoted the lecturers as Headmaster/ Headmistress without obtaining any option from them. Hence, the case of these Headmasters/Headmistress was covered under FR 22(1)(a)(I) and not under F.R. 22 (IV).

17. Admittedly, the post of Headmaster/Headmistress involves higher responsibility. The pay scale of Headmaster/Headmistress, at the time of promotion, could not be fixed at a lower scale than the one already drawn by them, to their disadvantage. In fact, by giving promotion to the Lecturers as Headmaster/Headmistress, their pay has been reduced. Thus, the pay of the Headmaster/Headmistress was liable to be fixed at a stage next above the stage as they were already drawing at the time of their promotion as Headmaster/headmistress from the post of Lecturer.

18. The next question that arises for consideration is as to whether the claim of the Teachers was barred by limitation. Since in the present case the challenge relates to fixation of pay and it can be said to be a recurring cause of action to the teachers. The challenge made by them cannot be said to be barred by limitation or the doctrine of latches.

19. In view of the above discussion, we are of the opinion that the Tribunal had rightly allowed the Original applications filed by the Teachers and the two petitions filed by the State, challenging the order passed by the Tribunal are liable to be dismissed, whereas, the petitions filed by the petitioners-Teachers seeking correct fixation of their pay are liable to be allowed.

20. Accordingly, the Civil Writ Petition Nos.842 & 273 of 2017 are dismissed.

21. So far as the remaining writ petitions are concerned, the same are allowed and in the cases where orders of recovery have been issued after re-fixation of pay of the said petitioners at a lower level, the said orders are set aside. It is further ordered that the pay scale of the petitioners drawn by them as Lecturers, at the time of their promotion as Headmaster/Headmistress, shall remain protected.

22. Pending application(s), if any, shall also stand disposed of.