1. This petition has been iled by the petitioner for grant of two advance increments in lieu of acquiring B.Ed. Certiicate at her own expenses prior to joining in service on the post of Assistant Teacher as also to quash the order dated 1.12.2016 (Annexure P/8), whereby, the State has denied the said beneit to the persons who were appointed after 16.6.1993.
2. Brief facts of the case are that in the year 1994, the petitioner and respondents 5 & 6 were appointed on the post of Assistant Teacher in the Tribal Welfare Department. In the year 2009, the petitioner was promoted to the post of UDT and in the year 2014, she was further promoted to the post of Lecturer. In May 2015, the services of the petitioner along with other Teachers of the Tribal Welfare Department was absorbed in the School Education Department. On 28.10.2014 (Annexure P/3), the State Government passed the order regarding grant of two advance increments from the date of joining to those Teachers who had obtained B.Ed./BTI Certiicate at their own expenses prior to joining their service. The petitioner obtained B.Ed. Certiicate (Annexure P/1) in the year 1991-1992 at her own expenses. Respondents 5 & 6, who are the similarly placed employees, were granted two advance increments vide order dated 22.2.2016 (Annexure P/4). Though the petitioner made several representations, but the claim (representation) of the petitioner was dismissed in pursuance of the Order/Circular dated 1.12.2016 (Annexure P/8) passed by the School Education Department, State of Chhattisgarh, by the District Education Oicer, District Korea by the order dated 13.4.2017 (Annexure P/7). Hence, this petition.
3. Learned counsel for the petitioner would submit that the State has issued a Circular/Order in this regard on 28.10.2014 (Annexure P/3). In the said Circular, no cut of date was mentioned and it has been clearly stated therein that the Teachers and the Lecturers, who had obtained B.Ed./BTI prior to their appointment at their own expenses, are entitled to two advance increments. They would submit that since similarly situated employees i.e. respondents 5 & 6 were granted such beneit, the State has discriminated in the case of the petitioner. They would further submit that respondent No.3 has passed the impugned order by wrongly interpreting the order dated 4.4.2014 passed by the Division Bench of this Court in a bunch of Writ Appeals i.e. WA No.105/2014 and other connected Appeals. Hence, learned counsel for the petitioner prays to allow the petition and grant two advance increments in favour of the petitioner.
4. Per contra, learned counsel for the State would submit that at para 9 & 10 of the order dated 4.4.2014 (Annexure P/9) passed in WA No.105/2014 and other connected Appeals, it has been categorically mentioned that previously B.Ed./D.Ed./BTI were not the necessary qualiications for appointment as Teachers/Assistant Teachers/Lecturers. However, by amendment published in the MP Gazette dated 16th of June, 1993, Schedule III of the Rules was amended and the said qualiications were added for appointment to such posts. It has been further observed that the cut of date of appointment i.e. prior to 16.6.1993 mentioned in the Circular dated 6.2.2007, in its irst part appears to be quite justiied because after 16.6.1993, B.Ed./D.Ed/BTI etc. were made necessary qualiications for the said posts. She would also submit that in the said order, it was further observed by the Division Bench that the further block of dates for getting said qualiication in between 23rd of October, 1964 to 1st of March 1999 mentioned in the second part of the Circular, does not appear to be reasonable. By ixing the said period for getting the above qualiications for grant of two advance increments, the State Government, in fact, has issued the said Circular, having a retrospective efect on the service prospects of the Teachers/Assistant Teachers/Lecturers, as any circular afecting an existing increment policy and causing prejudice to the rights of the respondents therein cannot be made applicable retrospectively. Lastly, it was observed by the Division Bench that the subject writ petitions were rightly allowed by the Writ Court in light of the Circular dated 24.12.1998 and other Circulars, ignoring the second part of the Circular dated 6.2.2007 and consequently, all the Writ Appeals iled by the State were dismissed. Hence, it would be clear from the above observations made therein that the second part of the Circular dated 6.2.2007 was, in fact, ignored by the Single Bench as also by the Division Bench treating it to be illogical and thus, the Circular dated 28.10.2014 (Annexure P/3) has to be interpreted in the said backdrop. They submit that the Recruitment Rules have been amended on 16.6.1993 and thereafter, the B.Ed./D.Ed./BTI were made necessary qualiications. They would also submit that the petitioner was appointed in the year 1994 i.e. after the said amendment and thus, the petition is misconceived. They would further submit that right to equality is not in negative terms and no negative equality can be claimed. For the above submission, they would place reliance on the judgment rendered in the matter of State of West Bengal and others Vs. Debasish Mukherjee and others reported in (2011) 14 SCC 187. The relevant para 26 reads thus :
26. It is now well settled that guarantee of equality before law is a positive concept and cannot be enforced in a negative manner. If an illegality or an irregularity has been committed in favour of any individual or group of individuals, others cannot invoke the jurisdiction of Courts and Tribunals to require the state to commit the same irregularity or illegality in their favour on the reasoning that they have been denied the beneits which have been illegally or arbitrarily extended to others. [See : Gursharan Singh vs. New Delhi Municipal Administration - 1996 (2) SCC 459, Union of India vs. Kirloskar Pneumatics Ltd. - 1996 (4) SCC 433, Union of India vs. International Trading Co. – 2003 (5) SCC 437, and State of Bihar vs. Kameshwar Prasad Singh - 2000 (9) SCC 94.
5. Learned State Counsel would also place reliance on the matter of State of UP and others Vs. Rajkumar Sharma and Others reported in (2006) 3 SCC 330, wherein, at para 15, it has been categorically mentioned that Article 14 of the Constitution of India does not envisage negative equality, and if the State committed the mistake, it cannot be forced to perpetuate the same mistake. Lastly, learned State Counsel pray for dismissal of the petition.
6. Heard learned counsel for the parties and also perused the documents annexed along with the petition with utmost circumspection.
7. The Recruitment Rules namely Madhya Pradesh Non-Gazetted Class III Education Service (Non-Collegiate Services) Recruitment and Promotion Rules, 1973 have been amended on 16.6.1993 and earlier, D.Ed./B.Ed/BTI were not the necessary qualiications for appointment as Teachers/Assistant Teachers/Lecturers. Admittedly, the petitioner was appointed on 27.1.1994 (Annexure P/2). In clause 6 of the said Appointment Order, it has been categorically mentioned that B.Ed./D.Ed./BTI were the necessary qualiications. In order to beneit the highly qualiied teachers, who had obtained D.Ed./B.Ed/BTI at their own expenses, the State has formulated a Policy vide Circular dated 6.2.2007 for grant of two advance increments to them and after the amendment, the said qualiications were made necessary and prescribed as minimum qualiication required for appointment on the post of Teacher. The State Government has not extended the beneit of two advance increment in lieu of passing the B.Ed./D.Ed./BTI Examination at their own expenses to those teachers who have been appointed after the said amendment i.e. 16.6.1993 and accordingly, the Circular/order dated 1.12.2016 has been issued, whereby, the Circulars dated 6.2.2007 and 12.3.2007 were set-aside.
8. In the second round of litigation i.e. in a bunch of Writ Appeals i.e. WA No.105/2014 and other connected Appeals, preferred by the State, in para 9 & 10 of the order dated 4.4.2014 (Annexure P/9), the said issue has been examined and in para 10, it has been categorically observed that the cut of date of appointment i.e. prior to 16.6.1993 mentioned in the irst part of the Circular dated 6.2.2007 appears to be quite justiied. So there is a rationality in the decision taken by the State Government as after the amendment, the qualiication of B.Ed/D.Ed./BTI became necessary qualiications to get appointment on the said posts, however, earlier, the same were not necessary qualiications.
9. For the foregoing, this Court is of the view that merely because after the order passed by this Court on 4.4.2014 in WA No 104/2014 and other connected Appeals, respondents 5 & 6 have been awarded two advance increments, the petitioner cannot claim negative parity for grant of beneit which has been extended to them. The concept of equality as envisaged under Article 14 of the Constitution is a positive concept which cannot be enforced in a negative manner. Further, it is trite law that right to equality under Article 14 is not in negative terms.
10. For the foregoing, this Court does not ind any good ground to entertain this petition.
11. Accordingly, the petition is dismissed.
