Sudha Trivedy v. The State of Bihar

Judgment

8. The State of Bihar, through the Chief Secretary, Bihar, Patna. The Principal Secretary, Department of Education, Bihar, Patna. The Director, Higher Secondary Education Department, Govt. of Bihar, Patna. The Deputy Director, Higher Secondary Education Department, Govt. of Bi- har, Patna. The District Magistrate, Vaishali. The Deputy Development Commissioner - cum - Chief Executive Officer, Zila Parishad, Vaishali. The District Education Officer, Vaishali. The District Programme Officer (Establishment) Vaishali. ====================================================== Appearance : ... ... Respondent/s For the Petitioner/s : Mr. Tej Bahadur Singh, Sr. Advocate.

Mr. Siyaram Pandey, Advocate. For the State : Mr. P. K. Shahi, Advocate General. Mr. Madanjeet Kumar, GP-20. ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 01-05-2025 Heard Mr. Tej Bahadur Singh, learned senior counsel along with Mr. Siyaram Pandey, learned counsel appearing on behalf of the petitioner and Mr. P. K. Shahi, learned advocate General along with Mr. Madanjeet Kumar, learned GP-20 for the State.

2. The petitioner in paragraph no. 1 of the present writ petition has sought, inter alia, following relief(s), which is Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 reproduced hereinafter:- “(I) For issuance of writ of certiorari for setting aside/quashing Para no. (2.8) of file no.11/bi 1- 8/2013-1530 dated 11/8/2015 issued by the education department, Gov. of Bihar, Patna (annexure-6) (II) and be pleased to pass a writ in the nature of writ of mandamus or an appropriate writ/writs, order/orders or direction/directions commanding the respondents to fix and make payment of salary to the petitioner with adding/calculating grade pay in the pay band-5200-20200 with grade pay 2800/ and other benefits like a regular trained assistant teacher as per the letter issued in this regard by the Govt. of Bihar as contained in sankalp sanchika no.11/bi 1-08/2013(ansh- 2)1632 dated 21-06-2017(Annexure-7) for which the petitioner is legally entitled for And/or be pleased to pass such other order or orders which may be deemed fit and proper in the facts and circumstances of the case.”

3. The petitioner has challenged the Clause 2.8 of the Resolution No. 1530 dated 11.08.2015 on the ground of discrimination.

4. Learned counsel appearing on behalf of the petitioner submitted that the petitioner is a Niyojit Teacher and was appointed on 10.04.2019 on the basis of M.A. and B.Ed degree, as Hindi teacher, to teach Class 10+2 students. The appointment of the petitioner was done in compliance of the order passed by the District Appellate Authority, Vaishali as contained in Memo No. 333 dated 30.03.2019 (Annexure-2). Terms and conditions are laid down in the said appointment letter which shows that the appointment of the petitioner was provisional. The grievance of the petitioner is that Clause 2 of the Resolution dated 11.08.2015 is applicable in her case and the petitioner being M.A. trained is entitled to be paid the Grade Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 Pay of Rs. 2800/- applicable to the M.A. trained in the Pay Scale of Rs. 5200-20200/-, which is applicable to the Higher Secondary Teachers (10+2 teachers). The petitioner is aggrieved by the terms and conditions of Clause 2.8 contained in the Resolution dated 11.08.2015 that she has been discriminated because of Kalavadhi of two years by not giving grade pay and the yearly increment from the date of her appointment / being eligible in accordance with the Bihar Higher Secondary Teachers (Employment and Service Conditions) Rules, 2006 (hereinafter referred to as the ‘Rules 2006’).

5. Learned counsel further submitted that the petitioner had qualified STET on 14.03.2013, passed B.Ed on 02.12.2015 and had applied for the fifth phase of teacher appointment as Assistant (+2 teacher) in Hindi Subject on 03.10.2016. The petitioner was appointed on 10.04.2019 vide Memo No. 333 dated 30.03.2019 issued by the D.D.C. cum Chief Executive Officer, Zila Parishad, Vaishali. The petitioner was, however, paid her salary for the first time on 29.05.2020, but without complying with the instruction contained in Certificate No. 1632 dated 21.06.2017 which mandates that trained (+2) teachers are entitled for Grade Pay 2800 with entry pay Rs.8000/- multiplied by Index 2.57.

6. Petitioner is aggrieved for non-payment of Grade Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 Pay which allegedly has been denied to her. Learned counsel submitted that the Resolution No. 1530 dated 11.08.2015, which for the first time, provides for Grade Pay with Pay Scale to trained teachers only after completion of two years of ‘Kalavadhi’, is not in conformity with the Rules, 2006 as amended till date. In this background, learned counsel submitted that both trained and untrained teachers have been put on the same platform which is discriminatory and requires interference of this Court.

7. A counter affidavit has been filed on behalf of the State duly sworn by the District Programme Officer (Establishment), Vaishali giving information that the Education Department issued Letter No. 1900 dated 04.10.2019 that those trained teachers who have completed two years service after

01.01.2016 cannot be granted Grade Pay, because the provision of the Grade Pay had ended after 01.01.2016. It has further been stated that the petitioner was appointed on 30.03.2019, thereafter after completion of two years Kalavadhi, the petitioner became entitled for Grade Pay 2800, corresponding Level-4, Index-1, as on 10.01.2020, her basic pay was fixed to the tune of Rs.13780/- (Level-1, Index-2) and accordingly, the petitioner is being paid in accordance with law. The petitioner has not been discriminated in any manner. Patna High Court CWJC No.8407 of 2021 dt.01-05-2025

8. Heard the parties.

9. The Rules, 2006 was amended vide amending provision of Rules, 2006 as contained in Notification No. 1324 dated 03.07.2012.

10. The definition of ‘Secondary Teacher’ and ‘Higher Secondary Teacher’ as contained in Rule 3(ii) & (iii) of Rules, 2006 is reproduced hereinafter: “3 (ii) **uxj ek/;fed f k{kd** ls vfHkizsr gS ek/;fed fo|ky; dk oSlk f”k{kd tks bl fu;ekoyh ds vUrxZr ek/;fed Lrj rd i<+kus gsrq fu;ksftr fd;k x;k gks] ” (iii) **uxj mPprj ek/;fed f k{kd** ls vfHkizsr gS ek/;fed fo|ky; dk oSlk f”k{kd tks bl fu;ekoyh ds vUrxZr mPprj] ek/;fed@baVj Lrj rd i<+kus gsrq fu;ksftr fd;k x;k gks] ”

11. Eligibility for appointment to the post of Higher Secondary Teacher as contained in Rule 4 ([k) is reproduced hereinafter: 4 ([k) uxj mPprj ek/;fed f k{kd ds fy, vgZ Ùkk]& (i) Hkkjr dk ukxfjd gks rFkk fcgkj jkT; ds fuoklh gksA (ii) fdlh ekU;rk izkIr fo”ofo|ky; ls fofufnZ‘V fo‘k; esa ” U;wure 45 izfr”kr vadksa ds lkFk dyk] foKku vFkok okf.kT; fo‘k; esa LukrdksÙkj dh fMxzh gksA vuqlwfpr tkfr@vuqlwfpr tu&tkfr@vR;Ur fiNM+k oxZ@fiNM+k oxZ ,oa fodykax ds fy, U;wure fu/kkZfjr vad esa 5 izfr’kr dh NwV nh tk,xhA (iii)jk‘Vªh; v/;kid f’k{kk ifj‘kn~ vf/kfu;e ykxw gksus ds iwoZ ekU;rk izkIr izf’k{k.k laLFkk ls ch-,M- vFkok vf/kfu;e ykxw gksus ds ckn jk‘Vªh; v/;kid f’k{kk ifj‘kn~ }kjk ekU;rk izkIr izf”k{k.k laLFkk ls ch-,M- dh fMxzhA

12. The Rule 8 of Rules, 2006 provides for consolidated pay of Rs. 12000/- per month to the trained teachers and Rs. 10,500/- per month to the untrained teachers and also for increment of Rs. 600/- after completion of three Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 years to the trained teachers and Rs. 500/- to the untrained teachers.

13. Similarly separate Rules were framed keeping in view the spirit / obligation which has been imposed upon the State as per the mandate of Article 41 read with Article 45 of the Constitution to secure Right to Free Education as a fundamental right of children up the age of 14 years. With this object, the Right of Children to Free and Compulsory Education Act, 2009 came into effect and as per the provision of Article 21A of the Constitution, Right to Free Education became the fundamental right of the children up to the age of 14 years to fulfill the said objective, the State of Bihar also framed Rules relating to different Unit and laid down criteria for the teachers to teach in Primary and Middle School in the year 2006.

14. To find out whether the petitioner who is a 10+2 teacher has been discriminated in any manner for non payment of grade pay and her claim that both trained and untrained teachers have been put on the same platform by Clause 2.8 of the Resolution dated 11.08.2015, which has been notified with an object to provide grade pay and corresponding pay scale to all the Niyojit Teachers. To understand Resolution No. 1530 dated 11.08.2015, the same is reproduced hereinafter: “2- orZeku esa fu;ksftr f”k{kd ,oa iqLrdky;k/;{k fu;r osru ij dk;Zjr gSA iapk;rh jkt laLFkkvksa ds ek/;e ls lHkh Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 fu;ksftr izf”kf{kr] vizf”kf{kr izkFkfed] ek/;fed] mPp ek/;fed f”k{kd ,oa iqLrdky;k/;{kksa dks fu;r osru ds LFkku ij fuEuor~ vuq”kaflr osrueku nsus dk fu.kZ; fy;k x;k gS%& 2-1 izkFkfed f k{kd ” dz0 la0 1 1 2 3 4 dz0 la0 1 1 2 3 4 5 2 ¼izf kf{kr½ ” ¼Lukrd izkFkfed f k{kd ” ” ¼vizf kf{kr½ ” izkFkfed f k{kd izkFkfed f k{kd ” ” xzsM vizf kf{kr½ izkFkfed f k{kd xzsM izf kf{kr½ ” dqy f”k{kd ¼izdkf”kr foKfIr ds fo:) Hkfo’; esa gksusokyh fu;qfDr lfgr½ ¼Lukrd ” la[;k osrueku~ xzsM osru 3 62031 245344 14000 4 5200&20200 5200&20200 5200&20200 22739 5200&20200 344114 5 0 2000 0 2400 2-2 ek/;fed f k{kd@iqLrdky;k/;{k ” la[;k osrueku~ xzsM osru 2 Ekk/;fed f”k{kd ¼vizf”kf{kr½ Ekk/;fed f”k{kd ¼izf”kf{kr½ iqLrdky;k/;{k mPp Ekk/;fed f”k{kd (10+2) ¼vizf”kf{kr½ mPp Ekk/;fed f”k{kd (10+2) ¼izf”kf{kr½ dqy f”k{kd ¼izdkf”kr foKfIr ds fo:) Hkfo’; esa gksusokyh fu;qfDr lfgr½ 3 4463 25038 1900 3058 4 5200&20200 5200&20200 5200&20200 5200&20200 5 0 2400 2400 0 26774 5200&20200 2800 61233 2-3 izf”kf{kr izkjafHkd] ek/;fed] mPp ek/;fed f”k{kdksa ,oa iqLrdky;k/;{k dks 01 tqykbZ] 2015 ls 5200&20200 ds osrueku esa 5200 dk csfld osru ns; gksxk] ftl ij izkFkfed f”k{kd ¼izf”kf{kr½ dks 2000 :i;s] izkFkfed f”k{kd¼Lukrd xzsM izf”kf{kr½] ek/;fed f”k{kd ¼izf”kf{kr½ ,oa iqLrdky;k/;{k dks 2400 :i;s rFkk mPp ek/;fed ¼izf”kf{kr½ f”k{kd dks 2800 :i;s dks xzsM is ns; gksxkA iwoZ dh x;h lsok ds fy, izR;sd rhu o’kZ dh lsok ds fy, ,d okf’kZd osru o`f) rhu izfr”kr dh nj ls ns; gksxhA 2-4 vizf”kf{kr izkjafHkd] vizf”kf{kr ek/;fed ,oa vizf”kf{kr mPp ek/;fed f”k{kdksa dks 5200&20200 osrueku esa 01 tqykbZ] 2015 ls 5200 dk csfld osru ns; gksxk] ijarq xzsM is ns; ugha gksxkA vizf”kf{kr izkjafHkd] ek/;fed] mPp ek/;fed f”k{kdksa dks Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 izf”kf{kr gksus ds mijkar vuq”kaflr osrueku dk xszM is ns; gksxkA iwoZ esa dh x;h lsok ds fy, izR;sd rhu o’kZ dh lsok ds fy, ,d okf’kZd osru o`f) rhu izfr”kr dh nj ls ns; gksxhA 2-5 izf”kf{kr ,oa vizf”kf{kr izkjafHkd] ek/;fed] mPp ek/;fed f”k{kdksa ,oa iqLrdky;k/;{kksa dks le;&le; ij jkT; ljdkj ds dfeZ;ksa ds vuq:i ?kksf’kr egaxkbZ HkRrk] fpfdRlk HkRrk] edku fdjk;k HkRrk ,oa ns; okf’kZd osru o`f) ns; gksxhA 2-6 vizf”kf{kr izkjafHkd] ek/;fed ,oa mPp ek/;fed] f”k{kdksa dks 01 tqykbZ 2015 dks ns; osru esa de ls de U;wure 20 izfr”kr dh o`f) dh tk;sxhA ftu ekeyksa esa 20 izfr”kr ls de o`f) fu/kkZfjr gksxh] oSls ekeyksa esa 20 izfr”kr rd o`f) djus ds fy, 100 ds xq.kd esa jkf”k tksM+h tk;sxh] ftls oS;fDrd osru ekuk tk;sxkA oS;fDrd osru ij egaxkbZ HkRrk ns; ugha gksxkA 2-7 vizf”kf{kr izkjafHkd f”k{kd ¼Lukrd xzsM½ ,oa vizf”kf{kr ek/;fed f”k{kdksa dks fo”ks’k HkRrk ds :i esa 1500 :i;s dh jkf”k izfrekg nh tk;sxh] ftlij egaxkbZ HkRrk ns; ugha gksxkA ;g jkf”k bl mn~ns”; ls nh tk jgh gS fd izkFkfed] iz[kaM f”k{kd] ek/;fed ,oa mPp ek/;fed f”k{kd ds osru esa iwoZ dh Hkkafr vUrj jgsA 2-8 fu;ksftr ,oa Hkfo’; esa fu;ksftr izf kf{kr izkjafHkd] ek/;fed] mPp ek/;fed f k{kdksa ,oa iqLrdky;k/; ” {kksa dks osrueku ds lkFk xszM is dh ns;rk mudh lsok ds nks o’kZ iwjk gksus ds mijkar ns; gksxhA nks o’kZ dh dkykfo/k esa bUgsa vizf kf{kr izkjafHkd] vizf kf{kr ek/;fed] vizf kf{kr mPp ” ek/;fed f k{kdksa ds vuq:i osrueku ns; gksxkA ” ” ” ”

15. The present writ petition was heard on several dates and to clarify the above Resolution, learned Advocate General and the Additional Chief Secretary are present before the Court. It was noticed in course of hearing in the present writ petition and other writ petitions where also the Resolution No. 1530 dated 11.08.2015 in question in respect of Elementary and Middle School don’t find reference of Grade Pay applicable to the teachers of the Middle School or Elementary School which is contrary to the Sub Clause (ii) of Clause (1) of the Notification No. 215 dated 23.08.2010 issued by the NCTE. The Notification is mandatorily required to be followed by giving benefit of the Resolution dated 11.08.2015 in respect of those Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 teachers of Middle School and Elementary School who were appointed under Rules, 2006, 2012 and 2020 and not given effect by their appointing units. Sub Clause (ii) of Clause (1) of the Notification No. 215 dated 23.08.2010 issued by the NCTE with regard to qualification of Class VI to VIII are reproduced hereinafter:

1. Minimum Qualification (ii) Classes VI-VIII (a) BA/B.Sc and 2-year Diploma in Elementary Education (by whatever name known) OR BA/B.Sc. with at least 50% marks and 1-year Bachelor in Education (B. Ed) OR BA/B.Sc. with at least 45% marks and 1-year Bachelor in Education (B. Ed), in accordance with the NCTE (Recognition Norms and Procedure) Regulations issued from time to time in this regard OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year Bachelor in Elementary Education (B. El. Ed) OR Senior Secondary (or its equivalent) with at least 50% marks and 4-year BA/B.Sc. Ed or B.A. Ed./BSc. Ed. OR BA/B.Sc. with at least 50% marks and 1-year B.Ed. (Special Education) AND (b) Pass in the Teacher Eligibility Test (TET), to be conducted by the appropriate Government in accordance with the Guidelines framed by the NCTE for the purpose.

16. Learned Advocate General in this view informs that necessary steps to rectify will be taken by the Additional Chief Secretary so that the teachers of Middle School or Elementary School who are also entitled for graduate trained grade pay, if not paid for any valid reason, will be treated Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 equally and for them necessary amendment or rectification will be made in the Notification contained in Resolution No. 1530 dated 11.08.2015 to avoid discrimination, if any.

17. Be that as it may be, in the facts of the present case, Vide Resolution No. 1530 dated 11.08.2015, Grade Pay was made applicable to the trained teachers irrespective of the Classes in which they were appointed by different appointing units.

18. The Grade Pay had come to an end with effect from 01.01.2016 as a result of 7th Pay Commission. Pay Matrix introduced a simplified, transparent and more efficient system for managing salaries and pension. It merged pay band and grade pay into a single unified level eliminating discrepancies.

19. It has been clarified by learned Advocate General that the petitioner has not been discriminated in any manner rather the Resolution is beneficial in nature irrespective of their appointment as per Rules, 2006. He further explained that the mechanism of giving the benefit of grade pay to the teachers from the date of their appointment subject to kalavadhi of two years to all the Niyojit Teachers is not discriminatory in any manner.

20. In the present case, the petitioner who was appointed in the year 2019 has already been granted the benefit Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 of grade pay in Level 4, Index – 1 in terms of the Clause 2.8 of the Resolution No. 1530 dated 11.08.2015, which prescribes two years of Kalavadhi from the date of appointment i.e.

10.04.2019. The case of the petitioner is covered by a Division Bench Judgment of this Court vide Judgment dated

10.08.2023 passed in C.W.J.C. No. 2417 of 2022 (Rajanish Kumar Mishra & Ors. Vs. The State of Bihar & Ors.), wherein the Division Bench has held the kalavadhi for a period of two years from the date of initial appointment to be valid. Therefore, no interference can be made by this Court in this regard.

21. Clause 2.8 of the Resolution No. 1530 dated

11.08.2015 prescribes Kalavadhi for a period of two years for granting Grade Pay in accordance with the qualification and entitlement which is entirely in domain of the State Government to include such condition which is subject to Kalavadhi of two years to the eligible teachers. The Resolution dated 11.08.2015 cannot be said to be in violation of the Rules framed under Article 309 of the Constitution and the same has been issued in exercise of the power conferred under Article 166 of the Constitution and challenge of the Clause 2.8 of the aforesaid Resolution on the point of discrimination is rejected in the case of the petitioner, who has been appointed after coming into Patna High Court CWJC No.8407 of 2021 dt.01-05-2025 force of the said Resolution.

22. The petitioner who is a 10+2 teacher, if finds that, she is aggrieved in any other manner may avail remedy before the appropriate authority for considering her grievance in accordance with law.

23. The writ petition stands disposed of. (Purnendu Singh, J) mantreshwar/- AFR/NAFR CAV DATE Uploading Date Transmission Date N.A.F.R. N.A. 12.05.2025 N.A.