Md. Fidaur Rahman vs State Of Jharkhand

 Pramath Patnaik, J

In the instant writ application, the petitioners have inter alia prayed for quashing office order dated 22.12.2005, by which, the date of grant of B.Sc.

trained scale to the petitioners has been changed from 24.06.1987 and 06.06.1987 to 01.04.1995 and ordered to recover the excess amount paid to

them and further prayer has been made to quash order dated 17.07.2006, by which the petitioner has been made juniors to 12 teachers.

2. The factual exposition, as delineated in the writ application, in brief, is that the petitioners were appointed as Assistant Teacher (Science) in the

year 1981. It has been averred that by passage of time, the petitioners acquired qualification of Master of Science (M.Sc.) in the year 1983 and 1990

respectively and further in the year 1987 they passed the B.Ed examination entitling themselves to get the B.Sc. trained scale. But, it is alleged that

even after acquiring requisite qualifications and in gradation list of B.Sc. trained teachers prepared in the year 1987 also, when they did not find their

names, they approached this Court by filing W.P. (S) No.3424 of 2000, which was disposed of vide order dated 05.03.2003 with a direction to the

petitioners to file representation before respondents. In compliance thereof, the petitioners submitted representation before District Superintendent of

Education, Dhanbad, who vide order dated 12.11.2003 rejected the claim stating that Seniority list is under preparation and after preparation it would

be sent to the Department for its approval. Aggrieved thereof, the petitioner again knocked the doors of the Court by filing W.P. (S) No. 1733 of 2004,

which was disposed of vide order 31.03.2004 remitting the matter back to the District Education Officer, Dhanbad to pass reasoned order. In

compliance thereof, the District Education Officer, Dhanbad passed order dated 11.11.2004 recommending the case of the petitioners for grant of

B.Sc trained scale w.e.f 24.06.1987 and 06.06.1987 respectively and further recommended that as per Rules of 1993, and in view of the vacancies,

the petitioners may be promoted on the post of Headmaster, Middle School. It has been averred that pursuant to such recommendation, though the

petitioners were granted B.Sc. trained scale but they were not promoted on the post of Headmaster. Left with no option, the petitioner again knocked

the door of this Court by filing W.P. (S) No. 5222 of 2005, which was disposed of vide order dated 06.12.2005 with direction to petitioners to file

representation before the Deputy Commissioner, Dhanbad. With the liberty aforesaid, the petitioner submitted representation on 20.12.2005, but in the

meantime, to the utter surprise to the petitioners, they received office order dated 22.12.2005, by which the date of grant of B.Sc. trained scale to the

petitioners has been changed from 24.06.1987 and 06.06.1987 to 01.04.1995 and further it was ordered to recover the excess amount paid to them.

Heard Md. Ashrafuzzaman Khan, learned counsel for the petitioners and Mr. Kaustav Roy, Associate Counsel to learned Sr. S.C. III for the

respondents-State.

Learned counsel for the petitioners submitted that before passing of impugned order dated 22.12.2005 neither any show cause notice was issued to

the petitioners nor opportunity of hearing was afforded to the petitioners to place their case; hence the impugned order is vulnerable on the cardinal

principle of breach of natural justice. Learned counsel for the petitioners further submitted that petitioners are rightly granted the benefit of B.Sc.

trained w.e.f. 24.06.1987 and 06.06.1987 and it cannot be cancelled without any rhyme or reason. Furthermore, it is well settled principle of law that

respondents have no authority/jurisdiction to recover the amount from the petitioner admittedly when there has been no misrepresentation on the part

of the petitioners.

Learned counsel for the petitioners further submitted that on the representation of the petitioner dated 20.12.2005, the Deputy Commissioner passed

order dated 17.07.2006 by virtue of which, petitioners were treated junior to twelve teachers, who have been promoted on the post of Headmaster.

As against this, learned counsel for the respondents submitted that the petitioners were granted B.Sc. trained scale from the date of passing of their

B.Sc. degree ignoring the recommendation made by District Education Officer vide memo dated 11.11.2004, by which, it was advised to grant B.Sc

trained scale in accordance with their seniority in the Gradation list and vacancy of the post, as per Promotion Rules, 1993. As per Rules of Promotion,

the petitioners, who initially joined as untrained teachers, and who were at serial no. 123 and 122 respectively in the gradation list were to be granted

the B.Sc. trained scale from the date of vacancy of the post and not from the date of acquiring of such degree. It has further been submitted that

since the posts of B.Sc. trained scale fell vacant from 01.04.1995, the respondentsauthorities have rightly shifted their date of promotion to B.Sc.

Scale from 24.06.1987 and 06.06.1987 to 01.04.1995. It has further been submitted that many teachers senior to the petitioners submitted protest

application for grant of B.Sc. trained scale from the date of their acquisition of B.Sc degree; hence, the entire matter was placed before the District

Education Establishment Committee, who reviewed the matter and after considering the entire gamut of the matter and rules passed the impugned

order dated 22.12.2005. So far representation of the petitioner pursuant to order dated 6.12.2005 in W.P. (S) No. 5222 of 2005 is concerned, the same

has been disposed of vide order dated 17.07.2006.

From the pleadings available on record, the moot question that falls for consideration before this Court is that “whether the petitioners were suo

motto entitled to get B.Sc trained Scale on acquisition of such degree, as per prevalent rules of promotion or the same is to be granted keeping in view

the seniority, vacancy etc?â€​

In case of enhancement of pay-scale either by way of promotion or grant of B.Sc trained scale or grant of A.C.P/M.A.C.P, general rules of

promotion is to be followed. From plain reading of Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 and from the pleadings

available on record, it is manifestly clear that while granting such elevated scales, seniority in the Gradation list, vacancy of the post and roster point

must be taken into consideration. Only acquisition of requisite qualification i.e. B.Sc/M.Sc with B.Ed, as the case may be, does not ispo facto entitle

the incumbent to get the enhanced pay-scale. Acquisition of such qualification only creates a right to be considered for the post in question or for

entitlement of enhanced pay-scale. In the case at hand, initially the petitioners were granted B.Sc trained scale from the date of acquisition of degree

of B.Sc., without considering the vacancy position in the cadre, but, when it came to the knowledge of authorities, the matter was placed before the

District Education Establishment Committee, who after taking into consideration the Promotion Rules, passed the impugned order dated 22.12.2005, by

which the date of grant of B.Sc. trained scale to the petitioners has been changed from 24.06.1987 and 06.06.1987 to 01.04.1995 and ordered to

recover the excess amount paid to them.

For the discussions made herein above, no illegality is found in passing the impugned order dated 22.12.2005, which needs no interference by this

Court. It further appears that in compliance of order passed by this Court in W.P. (S) No. 5222 of 2005 dated 06.12.2005, the representation of the

petitioners was disposed of after passing a well-reasoned speaking order, from perusal of which needs no interference by this Court.

In the net result, the writ petition, being devoid of any merit, is dismissed. Interim order, if any, granted by this Court stands vacated. Â

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