Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.3689 of 2010 ====================================================== 1. Krishna Nandan Prasad S/O Late Narayan Prasad R/O Vill.+P.O.- Dumari, P.S.- Barahiya, Distt.- Lakhisarai, At Present Posted And Working As An Assistant Teacher In Govt. Middle School- Mahsauni, Anchal- Kajara, Distt.- Lakhisarai Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Deptt. Govt. Of Bihar, Patna 3. The Principal Secretary, Finance Deptt., Govt. Of Bihar, Patna 4. The Deputy Secretary, Finance (Pay Fixation) Deptt., Govt. Of Bihar, Patna 5. The Director, Primary Education, Bihar, Patna 6. The Special Director, Primary and Adult Education, Bihar, Patna 7. The Regional Deputy Director of Education, Munger Division, Munger 8. The District Magistrate, Lakhisarai 9. The Deputy Development Commissioner-Cum-Chairman, District Education Establishment Committee, Lakhisarai 10. The District Superintendent of Education, Munger 11. The District Superintendent Of Education, Lakhisarai 12. The District Treasury Officer, Lakhisarai 13. The District Accounts Officer, Munger 14. The District Accounts Officer, Lakhisarai .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3209 of 2010 ====================================================== 1. Bindeshwari Prasad Yadav S/O Shri Sundar Yadav R/O Vill.- Lakshmipur, P.O. Singhchak, P.S.- Suryagarha, Distt.- Lakhisarai, At Present Posted And Working As An Assistant Teacher In Govt. Primary School- Basmatia, Anchal- Lakhisarai-II, Distt.- Lakhisarai Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Deptt., Govt. Of Bihar, Patna 3. The Principal Secretary, Finance Deptt., Govt. Of Bihar, Patna 4. The Deputy Secretary, Finance (Pay Fixation) Deptt., Govt. Of Bihar, Patna 5. The Director, Primary Education, Bihar, Patna 6. The Special Director, Primary and Adult Education, Bihar, Patna 7. The Regional Deputy Director of Education, Munger Division, Munger 8. The District Magistrate, Lakhisarai 9. The Deputy Development Commissioner-Cum-Chairman, District Education Establishment Committee, Lakhisarai 10. The District Superintendent of Education, Munger 11. The District Superintendent of Education, Lakhisarai 12. The District Treasury Officer, Lakhisarai Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 2/10 13. The District Accounts Officer, Munger 14. The District Accounts Officer, Lakhisarai .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.3236 of 2010 ====================================================== 1. Ram Bahadur Singh S/O Late Babu Lal Singh R/O Vill+P.O.Bihat(Ibrahimpur),P.S.Barauni,Distt-Begusarai,At Present Posted And Working As An Assistant Teacher In Govt. Upgraded Middle School- Bihat No.3,Anchal-Barauni,Distt-Begusarai Versus .... .... Petitioner/s 1. The State Of Bihar 2. The Principal Secretary, Human Resources Development Department Government Of Bihar, Patna 3. The Principal Secretary, Finance Department Govt. Of Bihar,Patna 4. The Deputy Secretary, Finance (Pay Fixation) Department, Government Of Bihar, Patna 5. The Director, Primary Education, Bihar, Patna 6. The Special Director, Primary and Adult Education, Bihar, Patna 7. The Regional Deputy Director of Education, Munger Division, Munger 8. The District Magistrate, Begusarai 9. The Deputy Development Commissioner -Cum-Chairman, District Education Establishment Committee, Begusarai 10. The District Superintendent Of Education, Begusarai 11. The District Treasury Officer, Begusarai 12. The District Accounts Officer, Begusarai .... .... Respondent/s ====================================================== with Civil Writ Jurisdiction Case No.5273 of 2010 ====================================================== 1. Awadhesh Prasad Singh S/O Late Ram Padarath Singh R/O Vill.- Harahiya, Mohalla- Ram Charan, Ward No.06, P.S.- Barahiya, Distt.- Lakhisarai, Presently Posted As Headmaster, Primary School, Ward No.04, At Barahiya, Distt.- Lakhisarai .... .... Petitioner/s Versus 1. The State Of Bihar through Commissioner-Cum-Secretary, Human Resources Development Department (Primary, Secondary and Mass Education), Government of Bihar, Patna 2. The Commissioner-Cum-Secretary, Department Of Human Resources Development (Primary, Secondary and Mass Education), Government of Bihar, New Secretariat, Patna 3. The Special Director, Primary Education, Government of Bihar, New Secretariat, Patna 4. The Commissioner- Cum- Secretary, Department Of Finance, Government Of Bihar, Old Secretariat, Patna 5. The Regional Deputy Director, Primary Education, Government of Bihar, Munger 6. The District Superintendent of Education, Government of Bihar,
Legal Reasoning
Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 3/10 Lakhisarai 7. The District Accounts Officer, Government of Bihar, Munger 8. The Block Education Extension Officer, Barahiya, Distt.- Lakhisarai
Legal Reasoning
.... .... Respondent/s ====================================================== Appearance : (In CWJC No.3689 of 2010) For the Petitioner/s : Mr. Umesh Kumar Mishra For the Respondent/s : Mr. Rajeev Lochan, AC to GA 9 (In CWJC No.3209 of 2010) For the Petitioner/s : Mr. Umesh Kumar Mishra For the Respondent/s : Mr. P.K.Singh, AC to GA 1 (In CWJC No.3236 of 2010) For the Petitioner/s : Mr. Umesh Kumar Mishra For the Respondent/s : Mr. (Aag3) (In CWJC No.5273 of 2010) For the Petitioner/s : Mr Madan Prasad Singh Mr. O.P.Maharaj For the Respondent/s : Mr. Rajeev Lochan, AC to GA 9 ====================================================== CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI CAV ORDER 7 11-09-2013 In all the writ applications, similar kind of order passed by the Director, Primary Education, Government of Bihar as contained in Annexure 12 in CWJC No.3689 of 2010, Annexure- 13 in CWJC No.3209 of 2010, Annexure- 15 in CWJC No.3236 of 2010 as well as the entry dated 3.7.2000 made in the service book of CWJC No.5273 of 2010, are under challenge. 2. The common facts are that the petitioners were appointed as Assistant Teachers in different Government Middle Schools in the Intermediate trained pay scale of Rs.730- 1080, sometime in the year 1987. They joined after their appointment as would be evident from their appointment letters and have worked regularly. Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 4/10 3. It is their stand that prior to the recommendation of the 5th Pay Revision Committee as well as the Fitment Committee Report, three scales were permissible to Elementary School Teachers, one was for Matric trained teachers, the other related to Intermediate trained teachers and the third related to Graduate trained teachers. 4. After the recommendation of the 5th Pay Revision Committee, a common new pay scale of Rs.1200- 2040 was introduced for Matric and Intermediate trained teachers. A notification no.6022.F (2), dated 18.12.1989 was notified by the Finance Department in furtherance to the acceptance of the pay scale recommended for the Matric and Intermediate trained teachers. The said notification is Annexure- 2 in CWJC No.3689 of 2010. 5. According to the petitioners, some confusion with regard to fixation of the revised pay scale amongst the teachers arose, which stood clarified by the Director, Primary Education vide his Memo No.299, dated 6.3.1990. The said guideline is Annexure- 3. In terms of the guideline issued in Annexure- 3 and on a reading of paragraphs 2 and 8 of Annexure 2 with that of paragraph 9 of Annexure- 3, it is evident that the teachers, who had been appointed between 1.1.1986 to 28.2.1989, their pay scale Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 5/10 was to be revised in accordance with Schedule III of Annexure- 2. 6. It is the case of the petitioners that taking the provisions into consideration as indicated in Annexures- 2 and 3 their pay scales were revised with effect from 1.3.1989 to Rs.1500. Petitioners further talk in terms of a clarification issued by the Deputy Secretary of Human Resources Department, issued vide Memo No.901 dated 2.6.1992, addressed to all District Superintendents of Education, which was supposed to mitigate the anomalies, which was arising in fixation of pay scale of teachers posted in government elementary schools and appointed between 1.1.1986 to 28.2.1989. A copy of Memo No.901 dated 2.6.1992 is Annexure- 5. Petitioners had been receiving their pay in terms of the fixed pay scale without any let and hindrance. However, when the service book of the petitioners were placed before the District Accounts Officer, Munger or concerned district, an entry was made in the service book that the petitioners had received more amount under the head of salary. The actual pay scale, which should have been fixed on 1.3.1989, should have been Rs.1320 instead of Rs.1500. Even a direction for recovery was ordered. The order of reduction of pay scale as well as order of recovery is termed to be violative of Articles 14, 16 and 21 of the Constitution of India. It is also their case that in similar Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 6/10 circumstances one Shiva Kant Jha had moved the High Court challenging the order of the District Accounts Officer, Begusarai and the High Court passed an order contained in Annexure- 8, which, according to these petitioners, applies to their case as well. 7. Many other teachers had also approached the High Court and all those matters were disposed of with a direction to the petitioners to move the Director, Primary Education to take a decision. The said order is Annexure- 10 to the writ application. It is in this background the impugned orders passed by the Director have come to be assailed in three of the writ applications and the entry in the service book made by the District Accounts Officer, Munger in the service book of one of the petitioners, reducing his pay scale, has been challenged in CWJC No.5273 of 2010. 8. In all the cases the common refrain is that the petitioners should be treated similar to the case of Shiva Kant Jha. The reasoning given by the Director upholding the decision of the District Accounts Officer of Begusarai, Lakshisarai, Sheikhpura, all coming under the erstwhile Munger district, is totally erroneous. It is also the case of the petitioners that based on the order in the case of Shiva Kant Jha, some writ applications have come to be allowed by learned single Judge by virtue of an order contained in Annexure- 15. Therefore, there is no reason why the Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 7/10 case of these petitioners should be treated any differently. 9. Respondents have filed their counter affidavit and have taken a stand that the Nationalized Elementary School Teachers Promotion Rule, 1993 had made specific provision by giving seniority to only teachers working in Intermediate trained pay scale up to 1.1.1986. Rule 8 (1) as amended on 21.8.2001 clearly states and denies the benefit of seniority to Intermediate trained teachers, who were appointed after 1.1.1986. Since all these petitioners were appointed in the year 1987, therefore, they will be governed by the guidelines, which have been laid down in terms of Annexure- 2. However, may be due to omission or mischief, a different pay scale was fixed in all these cases and wrong pay scale was granted to the petitioners. When the matter was placed before the District Accounts Officers for approval of fixation of pay, it came to their notice that wrong scale of pay of Intermediate trained scale was granted contrary to their entitlement and necessary entry in service book was recorded and excess amount of salary drawn between 1.3.1989 to 31.7.1999 was ordered to be recovered. The salary, according to the respondents, to which the petitioners were entitled to is said to be Rs.1290 with effect from 1.3.1989 instead of Rs.1470. Since there was a new pay scale, which was introduced in terms of Resolution No.6022, Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 8/10 dated 18.12.1989 and a common pay scale for Matric as well as Intermediate trained teachers was made applicable, they should not have drawn a salary higher than the above directive or decision of the government especially when it was made applicable from 1.1.1986. All those teachers, who were appointed prior to that date, were treated as a different class. Since all these teachers were appointed in the year 1987, much after cut off date, the matter was considered by the Director and he has passed an order, which is totally in consonance with the various provisions as well as Resolution No.6022, dated 18.12.1989. 10. The Court has gone through the impugned order passed by the Director. The working of the pay scale and the calculation made therein has been crystallized by way of a chart shown as Chart A and Chart B. The difference between the two comparative Charts indicates as to why an error was committed in calculation or fixation of the pay scale for teachers, who were appointed after 1.1.1986 and those appointed prior to 1.1.1986. Since these teachers was granted a pay scale, which was applicable to teachers appointed prior to 1.1.986 to which they were not entitled to, the necessary step was required to be taken because no employee can claim a benefit of a pay scale, which has not been authorized, sanctioned or approved by the competent Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 9/10 authority. The reason for reduction is evident from reading of the impugned order and the omission which had crept into in grant of the pay scales relating to these petitioners. 11. The Court has gone through some of the orders passed in the case of Shiva Kant Jha as well as some other petitioners, whose order is annexed as Annexure- 15. With due respect, these aspects of the matters had not been clearly indicated to the courts in question. The fact is that the authorities at field or the district level allowed these petitioners a pay scale, which was not available to them and which has been very clearly and succinctly explained by the Director in the impugned order, which on a reading of circular contained in Annexure- 2, reflects the correct position. This Court also has difficulty in going by any other decision on the issue. The reasoning given by the Director
Decision
in the impugned order is the correct reasoning and emerges from a clear reading of Annexure- 2 with Annexure- 3 and obviously, the petitioners, who are beneficiaries of a higher pay scale, would like to cling on to the same by whatever mechanism they can adopt in their favour. 12. The Court, therefore, would not like to interfere with the impugned orders by which pay scale of the petitioners have been re-fixed. However, there is nothing emerging from the Patna High Court CWJC No.3689 of 2010 (7) dt.11-09-2013 10/10 pleadings of the State that the higher pay scale, which was allowed to these petitioners, was due to any mischief or misrepresentation or fraud played by these petitioners in the said fixation. The Court will give them benefit of doubt especially when such salary has been drawn by them way- way back between the period 1.3.1989 to 31.7.1999. The order of recovery would be unconscionable and unfair at this belated stage. 13. The writ applications, therefore, are dismissed except to the extent that no recovery would be made from the petitioners. So far as the benefit of pay scale is concerned, since the Resolution contained in Annexure-2 has not yet been held or declared to be bad or discriminatory, these petitioners, who have been appointed after 1.1.1986 would only get the pay scale indicated in the said Annexure. (Ajay Kumar Tripathi, J) sk