Sita Ram Lal Das v. The State of Bihar

Counsel for the Petitioner - Mr. Kripa Nand Jha. Counsel for the State - J.C. to G.P.-10. Counsel for the Accountant - Mr. Ranjan Kumar. General ----------- 02

28.02.2009 What baffles this Court is the manner in which State employees are dealt with in this State. They are appointed, promoted but when they retired, their entire service career is then scrutinized for defects in procedure to either deny them pension or withdraw substantial part of pensionary benefits on the ground that several decades back, when they were appointed/promoted, some irregularity or mistake was committed. At the time when those appointments or promotions are made, no scrutinies are made to avoid such problems. Later in life or at the time of retirement, for a mistake committed by State several decades back, persons like the petitioner are penalized. This defies logic. Rajendra High School, Jarangdih, in the district of Hazaribagh, was recognized by Secondary Education Council. The Block Education Extension Officer was the government nominee in the 2 school’s managing committee. Petitioner was appointed as an assistant teacher by the managing committee on 15.04.1970 and was confirmed along with several others as permanent assistant teacher on 06.05.1973 with effect from 23.04.1970. The Sub-divisional Education Officer, Giridih by office order dated 21st August, 1974 (Annexure-3) fixed the pay scale of the petitioner with effect from 23.04.1970. There are similar communications recognizing his services from the date he joined the school. In the year 1977, the petitioner obtained Diploma-in- teaching, which is equivalent to Teacher’s Training course and accordingly was treated as trained teacher and allowed all benefits. In 1987 by Annexure-5, State Government clarified the services of untrained teachers who had been appointed prior to 27.01.1972 that they would be treated as trained teachers from the date of their initial appointment. Ultimately, petitioner superannuated on 31st July, 2005. When the matter of fixation of retiral benefits was being considered in the Accountant General’s Office, it was observed that services of the petitioner was recognized by the State in 1974, as such, taking that date as his date of appointment, he was held to be untrained teacher. Treating him to be an untrained teacher, it was opined that his remunerations were wrongly fixed and he was granted time bound promotion earlier than due. They ignored the service of petitioner from the date of his initial appointment in 1970 to 1974. Thus recalculating the monetary emoluments, it was worked out that petitioner, in his over three decade long career, was paid a sum of Rs. 2,30,441/- in excess. Petitioner was told that unless this amount is refunded, his retiral 3 benefits would not be finalized and pay. Under the said coercion, petitioner was left with no alternative but to deposit the said amount on

14.11.2006 and thereafter his retiral benefits have been fixed. Learned counsel for the petitioner submits that before even assessing or holding that the petitioner was wrongly treated as trained teacher and petitioner was wrongly given time bound promotion, no one thought it proper even to issue a notice to the petitioner and such a huge liability after retirement was created and petitioner was coerced to pay the same. The action was not only in violation of principles of natural justice but also gross arbitrary. Learned counsel for the petitioner further submits that the entire opinion of the Accountant General is based on wrong premise and without knowing the full facts. Having perused the counter affidavit and rejoinder thereto, it is not in dispute that petitioner was appointed in 1970. The stand that now being taken is that notwithstanding with his appointment in 1970, as his services were recognized in 1974, that would be the date of appointment. To my mind, this is wholly misconceived. Annexure-3 and other Annexures, referred to above, are government letters specifically recognizing service of the petitioner from the date of his initial appointment in 1970. There is a distinction between the appointment and recognition thereof. Recognition is an act post appointment. It recognizes the validity of appointment. It does not create an appointment. It is not an appointment. It is merely recognition of what has already happened. Thus, the starting point of the career of the petitioner has to be 1970 and has wrongly been taken 4 as 1974. The Accountant General had failed to notice the government circular, whereby the government decision was to treat all untrained teachers appointed prior to 21st January, 1972 as trained from the date of their initial appointment. There is no dispute about this circular but what is now being said is, as the date of appointment is the date of recognition of services, which is 1974, this circular will not apply. This is equally misconceived, as in my finding above, the date of appointment being 1970, the said policy decision circular would apply and petitioner would be treated as trained teacher, having appointed prior to 21.01.1972. That being the position, the time bound promotion having been worked out and being granted on basis of appointment of the year 1970, cannot be questioned. It is also not in dispute that in 1977, the petitioner obtained Diploma-in-teaching, which was equivalent to Teacher’s Training course and thus even otherwise became a trained teacher. Thus, in my view, there was nothing wrong with petitioner’s promotion or fixation of emoluments till the time of his retirement. The opinion of the Accountant General, which was blindly followed by the State as if that was a gospel truth binding on the State, was wrong. It is this Court that has insisted that such decisions or such liability or such action cannot be taken except with prior notice to a party concerned. Even otherwise for a mistake committed, even if it be 5 conceded it was a mistake, three decades back by State authorities in granting a mistaken promotion with which the petitioner had little to do, the petitioner cannot be penalized at the Sun set of his life. The consequences of which are grave to correct. An error is one thing but to grant consequential relief thereto is totally a different consideration. Thus, in my view, the writ petition must succeed. The payment, as made by the petitioner under advice from the Accountant General, must be refunded to the petitioner within a period of two months from today. This would be ensured by the Director, Secondary Education, Government of Bihar, respondent no. 2. With these observations and directions, the writ petition stands disposed of. Trivedi/ (Navaniti Prasad Singh, J.)