Full Judgment Text
2023INSC836
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6027 OF 2014
Samir Kumar Majumder … Appellant (s)
Versus
The Union of India & Ors. ...Respondent(s)
J U D G M E N T
K.V. Viswanathan, J.
1. Samir Kumar Majumder (the appellant) was a school
teacher at the Railway Higher Secondary School, Alipurduar
Junction. He taught mathematics to the school children.
Aggrieved by the judgment of the High Court at Calcutta
(hereinafter referred to as ‘the High Court’) dated 19.07.2011
in W.P.C.T. No. 130 of 2009, the appellant is before us in
appeal. By the said judgment, the High Court denied him
Signature Not Verified
Digitally signed by
Nidhi Ahuja
Date: 2023.09.21
10:02:07 IST
Reason:
absorption as an Assistant Teacher in the Higher Secondary
Section and also rejected his claim for continuity of service.
1
Relevant Facts:
2. The appellant was initially appointed as a Substitute
Teacher on 05.12.1989. According to him, artificial breaks
were created in his service by terminating him on the eve of
the school vacations and thereafter reappointing him. The
appellant states that he was terminated first before the
summer vacations on 09.06.1990 and was re-engaged on
24.07.1990. His further case is that he was again terminated
on 22.09.1990, on the eve of Puja Holidays. According to
him, he was re-engaged on 01.11.1990.
3. When the matter stood thus, the appellant, fearing
further creation of artificial breaks filed an application being
O.A. No. 209 of 1990 before the Central Administrative
Tribunal (for short ‘the Tribunal’) Guwahati Bench. He
prayed for setting aside of the letters of termination dated
09.06.1990 and 19.09.1990 and also prayed for regularization
of his service and for salary during the period of breaks.
2
4. The Tribunal passed an interim order on 03.12.1990
and it is an admitted fact that he continued till 12.11.1994
when his services were again terminated, after the Tribunal
had dismissed his application on 31.10.1994.
5. The Tribunal, while dismissing his application on
31.10.1994, solely relied on another order of the same
Tribunal, passed on the same day, in O.A. No. 149(G) of
1989 in the case of Smt. Jayasree Deb Roy (Dutta) vs. The
Union of India & Ors. Para 4 of the order in the appellant’s
case is important, which we extract herein below:
“4. We have examined the question of regularization of
substitute teachers in detail in our order on O.A. No.
149(G) of 1989 passed today. We have come to the
conclusion that the substitute teachers cannot claim
regularization as a matter of right. We have also held
that selection by the Railway Recruitment Board is
essential for regular appointment. For the same reasons
we hold that the applicant is not entitled to be granted
any relief of regularization. Moreover, in the instant
case although the applicant had appeared before the
Recruitment Board he was not selected. That does not
entitled him to ask for any relief of regularization on
the basis of his earlier service as substitute teacher.”
3
6. O.A. No. 149(G) of 1989 was carried in Appeal to this
Court by way of Civil Appeal No. 9424 of 1995 along with
the batch of matters of similarly situated candidates, which
was disposed of on 13.10.1995. The operative portion of the
said order reads as under:-
“… The appellants were, therefore, entitled to the
benefit conferred under para 5.1 of the circular
(Circular R.B. No. 12/91 M.C. No. 20/91
E(NG)/90/SC/Master) dated January 29, 1991, and
on that basis the appellants are entitled to absorption
on regular basis through the process of screening by
the screening committee in accordance with the
said provision and they are not required to face se-
lection by the Railway Recruitment Board for the
purpose of regular absorption. The judgment of the
Tribunal holding otherwise cannot, therefore, be up-
held and has to be set aside.
After the impugned Judgment of the Tribunal,
the services of the appellants have been terminated.
In case the appellants are found suitable for
absorption by the Screening Committee, they should
be appointed on regular basis on the post that was
held by them and they would also be entitled to
continuity of service. The appeals are, therefore,
allowed, the judgments of the Tribunal dated
October 31,1994 in the applications filed by the
appellants are set aside and the said applications are
allowed with the direction that the appellants shall
be considered for absorption on regular basis on the
post of Assistant Teacher by the Screening Commit-
tee in accordance with para 5.1 of the master circular
4
dated January 29, 1991, and in case the appellants
are found suitable for such absorption by the
Screening Committee, they shall be restored to the
post held by them with continuity of service.
The process of selection by the Screening
Committee as per directions in this order shall be
completed within a period of three months from the
receipt of the copy of this order. A copy of this order
be sent to the Chief Personnel Officer, North East
Frontier Railway, Maligaon, Guwahati.
By our order dated March 27, 1995, we had
directed that appointment may not be made on six
posts of school teachers. The said order shall
continue till the Screening Committee completes the
process of screening.”
7. The appellant too carried the matter from the Tribunal
to this Court. His matter was disposed of on 15.02.1996 in
the following terms:-
“These appeals relate to regular absorption of the
appellants who are working as substitute teachers in
the Railways. In the impugned judgment the Central
Administrative Tribunal has observed that the
appellants should be given an opportunity to appear
before the Selection Board if they are otherwise
eligible as and when such selection is made and has
expressed the hope that the respondents would try to
accommodate them even on temporary basis if there
happens to be any casual vacancy available from
time to time and for that purpose they may be placed
on waiting list of substitute teachers.
5
The submission of Shri Puri, the learned counsel
appearing for the appellants, is that the appellants
who have crossed the age bar may not be eligible for
such consideration. Having regard to the facts and
circumstances of these cases, it is directed that if the
appellants have crossed the prescribed maximum
age, they may be considered for regular selection by
giving relaxation in that regard. But such relaxation
shall be confined to one opportunity for
consideration for such selection. The appeals are
disposed of accordingly. No order as to costs.”
8. Even though textually, the orders may appear different,
the respondent-authorities rightly acted in terms of the true
purport of the order. They subjected the appellant also to the
process of screening by the Screening Committee in
accordance with para 5.1 of the Master Circular dated
29.01.1991 (hereinafter referred to as ‘the Master Circular
dated 29.01.1991’)
9. After subjecting the appellant for screening, by an order
of 02.01.1998, the appellant was appointed as Primary
Teacher (Bengali Medium) in the Railway Higher Secondary
School, Alipurduar Junction against an existing vacancy.
6
10. Being aggrieved, the appellant filed Original
Application No. 978 of 1998 before the Central
Administrative Tribunal, Calcutta Bench.
11. The grievance was that firstly , the appellant should
have been absorbed in the post of Assistant Teacher instead
of being absorbed as a Primary Teacher with admissible
continuity of service in the pay-scale of Rs.5500-9000 and
not Rs.4500-7000 that was now offered under the 02.01.1998
order; secondly , the appellant is entitled to the pay-scale and
allowance admissible to the post of Assistant Teacher Grade-
I, namely, Rs.1640-2900 from 05.12.1989 instead of the pay-
scale of Rs.1200-2040 that was offered. Thirdly , that under
the Master Circular dated 29.01.1991, a Substitute School
Teacher who acquires temporary status, after putting in
continuous service for three months, is entitled to continuity
in service as prescribed therein.
7
12. At this stage, we can profitably refer the order dated
28.12.1998 passed on the aspect of continuity of service with
regard to these teachers who were currently absorbed. The
order reads as under:
“Sub:- Continuity of Service on regular absorption
In compliance with Judgment of Hon’ble Supreme
Court of India and CAT/Guwahati dated 13-10-95, 15-
2-96. 2-1-96 and 7-10-96, the following substitute
teachers are absorbed as Primary teacher (Bengali
Medium) and posted in Railway Schools.
1. Smt. Jayashree Deb Roy (Dutta)
2. Smt. Ratna Roy.
3. Shri Subal Chandra Chakraborty
4. Smt. Anupama Bhowmick
5. Shri Pijush Kanti Das
6. Smt.Radha Chakraborty
7. Shri S. K. Majumder.
The past service rendered by (1) Smt. Jayashree
Deb Roy (Dutta) (2) Smt. Ratna Roy (3) Shri Subal
Chandra Chakraborty (4) Smt. Anupama Bhowmick
and Shri Pijush Kanti Das as Substitute teacher in
different spells may be taken into account for all
purpose except Seniority from the date of acquiring of
temporary status with treating breaks as Dies-non.
However, the Hon’ble Court has not directed
any specific order regarding Continuity of service in
favour of Smt. Radha Chakraborty and Shri S.K.
Majumder and as such the date of appointment will be
the date of regular appointment after regularization by
Screening Committee.
8
This has the approval of Competent authority.”
13. As will be seen from the penultimate paragraph of the
letter dated 28.12.1998, extracted hereinabove, the only
reason that the appellant was denied continuity of service
while others were granted was that this Court had not made
any order regarding continuity of service. All other teachers,
including Jayashree Deb Roy (Dutta) [applicant in O.A. No.
149(G) of 1989] were granted continuity of service and the
past service rendered by them as substitute Teacher in
different spells was taken into account for all purposes except
seniority from the date of acquiring of temporary status by
treating breaks as dies non . (A day on which no legal
business is carried on).
14. The respondent-authorities defended their orders before
the Central Administrative Tribunal, Calcutta Bench.
Findings of the courts below:
15. The Central Administrative Tribunal, Calcutta Bench, by
its judgment of 28.11.2008, held that the appellant had only
9
been appointed as a primary teacher on 05.12.1989 in the
pay-scale of Rs.1200-2040; that functioning as a mathematics
teacher for Classes XI and XII, as a stop-gap measure, would
not entitle him the rights of a regular appointee to the post of
Post Graduate Teacher; that the orders of this Court did not,
in the appellant’s case, direct specifically regarding
continuity of service, as was done in the other cases and the
appellant’s case being one of regular absorption, no
continuity of service can be given to him. Holding so, the
Central Administrative Tribunal, Calcutta Bench dismissed
the application of the appellant.
16. The appellant filed a Writ Petition before the High
Court at Calcutta. The High Court once again, relying on the
order of this Court, held that the benefit of continuous service
was specifically rejected in the case of the appellant. So
holding, the High Court upheld the order of the Central
Administrative Tribunal, Calcutta Bench.
17. The appellant is before us in Appeal.
10
Contentions:
18. We have heard Ms. Uttara Babbar, learned counsel for
the appellant and Mr. Nachiketa Joshi, learned counsel for
the Union of India. Both the learned counsel have
painstakingly taken us through the records of the case and
presented their respective points of view very ably.
19. Ms. Uttara Babbar, learned counsel for the appellant,
contends that under the Master Circular dated 29.01.1991,
Clause 4.3, 5.1 and 6 would apply to the case of the
appellant. According to her, on completion of three months
continuous service, the appellant acquired the temporary
status under Clause 4.3; that under Clause 5, Substitutes, who
have acquired temporary status were to be screened by a
Screening Committee and not by Selection Boards for the
purpose of absorption, and under Clause 6, the date of
appointment of a substitute to be recorded in the service book
against the column “date of appointment” should be the date
on which the substitute attains a temporary status after
11
continuous service of three months, if the same is followed
by his/her regular absorption. According to the learned
counsel, only for those who do not acquire temporary status
and who are regularly appointed, the date of appointment
would be the date when they are absorbed.
20. According to the learned counsel, the appellant having
completed three months of continuous service as a substitute
teacher is entitled to reckon his date of appointment as
04.03.1990 (on completion of three months) since he now
stands duly absorbed by the order of 02.01.1998.
21. According to the learned counsel, the appellant ought to
have been absorbed as Assistant Teacher since he worked as
a substitute Assistant Teacher and taught Classes XI and XII.
Her further alternative case is if he has to be only considered
as absorbed under the category of Primary Teacher, then he
should be entitled to the benefit under the Master Circular
dated 29.01.1991 and should be entitled to reckon his service
under Clause 6 of the said Circular from 04.03.1990.
12
Learned counsel further contends that the order of this Court
in the case of the appellant dated 15.02.1996 should be read
in conjunction with the order of this Court dated 13.10.1995
in the case of Smt. Jayasree Deb Roy (Dutta) - applicant in
O.A. No. 149(G) of 1989. Learned counsel lays particular
emphasis on the fact that the Tribunal in the appellant’s case
in O.A. No. 209 of 1990 had wholly relied on the order in the
case of O.A. No. 149(G) of 1989 (the case of Smt. Jayasree
Deb Roy (Dutta). Reiterating para 4 of the said order,
learned counsel contends that O.A. No. 209 of 1990 of the
appellant was dismissed for the same reasons that O.A. No.
149(G) of 1989 was dismissed. Learned counsel further
emphasizes the fact that in C.A. No. 9424 of 1995, by order
dated 13.10.1995, this Court in the case of Smt. Jayasree Deb
Roy (Dutta) had specifically recorded that the judgment of
the Tribunal in O.A. No. 149(G) of 1989 was set aside.
22. Learned counsel further contends that even the
authorities so understood the orders of this Court and it is for
13
that reason that they subjected the appellant also to a
screening before the Screening Committee before the
absorption on 02.01.1998. Learned counsel contends that,
having done so, there was no plausible reason to discriminate
the case of the appellant when it came to the grant of relief
regarding continuity of service on the ground that this Court
continuity of service
had not made any specific order regarding .
23. Learned counsel contends that the grant of age bar
relaxation can only be understood as a grant of additional
relief and this cannot be read to mean that there was denial of
the relief of continuity of service, if the appellants’ were
found entitled for absorption which they ultimately were
found be entitled to.
24. Mr. Nachiketa Joshi, learned counsel for the Union of
India, vehemently opposed the above submissions. Learned
counsel, defending the orders of the courts below would
submit that the claim for absorption as Assistant Teacher was
totally unjustified. According to the learned counsel, the
14
appellant was appointed in 1989 only as a substitute primary
teacher in the pay-scale of the primary teacher and hence
merely on the basis of the claim that some stop-gap classes
XI and XII were taken, no plea for absorption as Assistant
Teacher could be justified/made. He defended the order of
absorption dated 02.01.1998 and also contended that the
authorities were justified in passing the order of 28.12.1998
denying continuity of service for the period before
02.01.1998, since there was a clear distinction between the
judgment of this Court in the case of Smt. Jayasree Deb Roy
(Dutta) and others in the case of the appellant.
25. Drawing attention to the orders of this Court in the case
of Smt. Jayashree Deb Roy (Dutta) vs. Union of India and
Ors. (C.A. No. 9424 of 1995) arising out of O.A. No. 149(G)
of 1989, learned counsel contends that in the case of Smt.
Jayasree Deb Roy (Dutta) (supra), there was a specific
finding that the appellants in that case were entitled to
continuity of service in accordance with para 5.1 of the
15
Master Circular dated 29.01.1991 in the event the Screening
Committee found them fit for absorption.
26. Contrasting this with the judgment of this Court in the
appellant’s case, learned counsel would contend that no such
direction for granting continuity of service in the event of
absorption was given in the appellant’s case.
27. Learned counsel would contend that even factually the
case of the appellant was different from the case of Smt.
Jayasree Deb Roy (Dutta) inasmuch as Smt. Jayasree Deb
Roy (Dutta) was in service on the date of absorption, while
the appellant was not. This submission is seriously disputed
by Ms. Uttara Babbar. Nothing much however turns on this
last submission of the counsel for the respondents.
Reasons and Conclusion:
28. We have considered the rival contentions and perused
the records.
16
Claim for absorption as Assistant Teacher – Higher
Secondary Section:
29. We are of the view that the appellant’s claim for
absorption as Assistant Teacher in the Higher Secondary
Section in the pay-scale of Rs.5500-9000 is not tenable. The
appellant was appointed as a substitute teacher in the pay-
scale of a primary teacher. In fact, when he filed the first
round of proceedings in O.A. No. 209 of 1991, no plea was
raised that he worked as an Assistant Teacher in the Higher
Secondary Section. Even when he obtained interim orders
from the Tribunal on 03.12.1990, it was only to the effect
that the services of the appellant should not be dispensed
with without the leave of the Court. Even before the
Tribunal, the argument was only about regularization. Before
this Court too, no claim for regularization as Assistant
Teacher in the Higher Secondary Section was made.
30. The contention now raised in the present round of
proceedings (O.A. No. 978 of 1998) for absorption as
17
Assistant Teacher in the Higher Secondary Section is
strongly refuted by the respondents by pointing out that his
engagement as a substitute teacher was only in the pay-scale
of Rs.1200-2040 which was the scale for the primary teacher.
They contend that his claim that he was allowed to take
classes for XI and XII is unfounded. No doubt, the Central
Administrative Tribunal, Calcutta Bench has recorded that
the applicant had functioned as a mathematics teacher for
Class XI and XII as a stop-gap measure.
31. This issue, however, need not detain the Court any
longer as at no point in the first round of proceedings, the
appellant made such a claim; the Screening Committee
having considered him, pursuant to the orders of this Court,
has thought it fit to absorb him only as a primary teacher; the
Screening Committee itself was pursuant to the orders of this
Court and based on the Master Circular of 29.01.1991
wherein the claims of the candidates like the appellant were
examined; the records of his appointment as a substitute
18
teacher admittedly show that he was only appointed as a
substitute primary teacher; it is on the completion of three
months as substitute primary teacher that he acquired
temporary status and on absorption now he became entitled
to certain benefits under the Circular which we have
elaborated herein above.
32. In the earlier round of proceedings culminating in the
order of this Court dated 15.02.1996, this issue was never
raised. His claim for absorption as an assistant teacher in the
Higher Secondary Section is clearly barred by constructive
res judicata .
Law on Constructive Res Judicata :
33. Almost two centuries ago, in Henderson vs.
Henderson , (1843) 3 Hare, 100, the Vice-Chancellor Sir
James Wigram felicitously puts the principle thus:-
“In trying this question I believe I state the rule of the
Court correctly when I say that, where a given matter
becomes the subject of litigation in, and of adjudication
by, a Court of competent jurisdiction, the Court
requires the parties to that litigation to bring forward
19
their whole case, and will not (except under special
circumstances) permit the same parties to open the
same subject of litigation in respect of matter which
might have been brought forward as part of the subject
in contest, but which was not brought forward, only
because they have, from negligence, inadvertence, or
even accident, omitted part of their case. The plea of
res judicata applies, except in special cases, not only to
points upon which the Court was actually required by
the parties to form an opinion and pronounce a
judgment, but to every point which properly belonged
to the subject of litigation, and which the parties,
exercising reasonable diligence, might have brought
forward at the time. ….”
34. This principle popularly known as the doctrine of
constructive res judicata, based on the might and ought
theory, has been recognized by this Court in several
judgments. In Maharashtra Vikrikar Karamchari
Sangathan vs. State of Maharashtra and Another , (2000) 2
SCC 552, this Court held as under:-
“22. It was then contended on behalf of the appellants
that neither the Recruitment Rules of 1971 nor the
Seniority Rules of 1982 provided for carrying forward
the vacancies falling in either category. In the absence
of such rules which specifically provide for carrying
forward the vacancies falling in either category, no
such carry-forward rule could be implied either in the
Recruitment Rules or in the Seniority Rules. This
contention need not detain us any longer because such
a contention was available to the appellants in the
earlier proceedings, namely, Transfer Application No.
20
822 of 1991 and the same was not put in issue. That
not having been done, it must follow that such a
contention is barred by the principles of constructive
res judicata. Neither the contesting respondents nor the
appellants ever raised this contention at any stage of
the proceedings in Transfer Petition No. 822 of 1991.
It would, therefore, be too late to raise such a
contention when the seniority list has been finalized
pursuant to the judgment of MAT, Bombay Bench in
Transfer Petition No. 822 of 1991.”
Interest reipublicae ut sit finis litium :
35. The doctrine itself is based on public policy flowing
from the age-old legal maxim interest reipublicae ut sit finis
litium which means that in the interest of the State there
should be an end to litigation and no party ought to be vexed
twice in a litigation for one and the same cause (See M.
Nagabhushana vs. State of Karnataka and Others , (2011) 3
SCC 408.
36. The contention raised on behalf of the appellant that he
should at least be paid the salary and allowances as paid to
the Assistant Teachers in the Higher Secondary Section for
the time he functioned should also fail for the reason as set
out herein above.
21
Claim for continuity of service :
37. The appellant however cannot be denied continuity of
service under the Master Circular dated 29.01.1991 read with
the orders of this Court in Smt. Jayasree Deb Roy (Dutta)
(supra) [C.A. No. 9424 of 1995] and the order in the
appellant’s own case i.e. C.A. No. 3557 of 1996 dated
15.02.1996. This is a fresh cause of action, which has arisen
in view of his absorption on 02.01.1998, subsequent to the
culmination of the earlier round of proceedings.
38. The conduct of the authorities themselves in subjecting
the appellant to screening before the Screening Committee,
like they did for Smt. Jayasree Deb Roy (Dutta) and Others,
also clearly indicates that even they wanted to treat the
appellant’s case on par with the case of Smt. Jayasree Deb
Roy (Dutta) and Others. It is on that basis that the appellant
was found fit for absorption as a primary teacher and he was
so absorbed. The only reason given in the order denying
continuity for the appellant while granting continuity of the
22
same for the others is that, in the case of the appellant, this
Court had not directed any specific order regarding
continuity of service.
Rights under the Master Circular :
39. The appellant’s right first of all flows from the Master
Circular dated 29.01.1991, as has been rightly contended by
learned counsel for the appellant. For the sake of
convenience, we extract herein below the relevant clauses:-
“4. BENEFITS.
4.1. Substitutes engaged should be paid regular scales of
pay and allowances admissible to the post against which
they have been appointed irrespective of the nature of
duration of the vacancy.
4.2. They be allowed all the rights and privileges as are
admissible to temporary railway employees on
completion of four months continuous Service.
4.3. Substitute school teacher may, however, be afforded
temporary status after they have put in continuous service
of three months. Their service to be treated as continuous
for all purposes except seniority on their eventual
absorption against regular posts after selection.
4.4 The conferment of temporary status after completion
of four months continuous service in the case of others
and three months continuous service in the case of
substitute teachers mentioned in paras - 4.2 and 3 above
does not entitle them to automatics absorption/
appointment to Railway service unless they are selected
23
in the approved manner for appointment or absorption to
regular posts.
4.5 Service of substitutes will count for Pensionary
benefits from the date of completion of four months (3
months in the case of teachers) continuous service
provided it is followed by absorption in regular Group-C'
(Class lll)/Group-'D' (Class -IV) Service without break.”
... ...
“5. Screening of the substitutes for their absorption in
regular service:-
5.1 Substitutes, who have acquired temporary status
should be screened by screening Committees and not by
Selection Boards, Constituted for this purpose before
being absorbed in regular Group -'C' (Class-Ill) and
Group-'D' (Class-IV) posts.
Such a screening Committee should consist of at
least three members, one of whom should belong to the
SC/ST Communities and another to minority
communities.”
… ...
5. 11 Gaps which may occur in service of substitutes
between two engagements should be ignored for the
purpose of temporary status on completion of four
months services and in case of teachers, on completion of
3 months service.”
… …
“6. Date of appointment.
The date of appointment of a substitute to be recorded in
the service book against the column "date of
appointment" should be the date on which he /she attains
temporary status after continuous service of four months
if the same is followed by his/her regular absorption.
Otherwise, it should be the date on which he/she is
regularly appointed/absorbed.
This applies to substitute teachers also who attain the
temporary status after a continuous service of three
months only.”
24
40. A reading of the above clearly shows that on
completion of three months of continuous service as
substitute teacher, the incumbent acquires temporary status.
It is also clear that substitutes who have acquired temporary
status should be screened by the Screening Committee and
not by Selection Board. It is also clear that under Clause
5.11, gaps which may occur in service of substitutes between
two engagements should be ignored for the purpose of
temporary status on completion of four months service and in
case of teachers, on completion of three months service.
Further, it is clear that the date of appointment should be the
date on which they attained temporary status in the event
they are regularly absorbed. As is clear from the dates
mentioned hereinbelow that the appellant having acquired
temporary status on 04.03.1990 is entitled to count his
service from 04.03.1990 in view of his absorption in the
service as a primary teacher on 02.01.1998.
25
41. The authorities are wrong in stating that in the case of
the appellant this Court had not directed any specific order
regarding continuity of service. This Court’s order of
15.02.1996 has to be read with the order in the case of Smt.
Jayasree Deb Roy (Dutta) dated 13.10.1995. Nowhere in the
order of this Court in the appellant’s appeal had the benefits
available to the appellant under the Master Circular been
taken away. In the case of Smt. Jayasree Deb Roy (Dutta),
by abundant caution, the Master Circular was referred to and
the rights granted therein were reiterated expressly in this
Court’s order. On the facts of the present case, we are not
persuaded to accept the contention of the respondent that the
order of this Court in the appellant’s case should be so read
as having denied him the benefits of Master Circular dated
29.01.1991.
42. The appellant being identically situated with the other
absorbees in the order of 02.01.1998 could not have been
26
discriminated and denied the benefit of his service from
04.03.1990 to the date of his absorption.
43. The Tribunal and the High Court have grossly erred in
denying the relief by wrongly understanding the orders of
this Court and the legal position.
44. We direct that the appellant will be entitled to take into
account the past service rendered by him as substitute teacher
in different spells, from the date of obtaining temporary
status (04.03.1990). The appellant should be extended the
same benefits as were extended to others, who were granted
continuity by the letter of 28.12.1998.
45. The appellant has superannuated now. The pay of the
appellant shall be re-fixed after granting continuity of
service with all consequential benefits in accordance with
Clause 6 of the Master Circular dated 29.01.1991. All the
necessary increments and allowances due on that basis also
should be granted. The retrial benefits also should be
consequently reworked. The unpaid arrears amount be paid
27
to the appellant with six percent interest from the respective
dates the various amounts fell due. Let the payment be made
within eight weeks from today.
46. Accordingly, the impugned order of the High Court
dated 19.07.2011 passed in W.P.C.T. No. 130 of 2009 is set
aside. The Appeal is partly allowed in the above terms.
There shall be no order as to costs.
…..…………………J.
(J.K. Maheshwari)
…..…………………J.
(K.V. Viswanathan)
New Delhi;
September 20, 2023.
28