Prabhat Kumar and Others Vs State of Bihar and Others

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37 paragraphs · 5,425 words

Mihir Kumar Jha, J.—Heard learned counsel for the parties.

In this writ application the two petitioners, who came to be appointed on compassionate ground in the district of Begusarai on the post of Teacher in Matric untrained pay scale on 22.10.1992 and 4.4.2000, have assailed an order passed by the Director, Primary Education dated 3.9.2012 and its consequential order dated 2.5.2013.

Learned counsel for the petitioners has submitted that both the petitioners would be entitled for grant of their Matric trained pay scale with effect from 1.10.2003, inasmuch as they had completed their training session of the year 2000-2001 and eventually were granted Matric trained pay scale on 29.2.2012 with effect from 20.5.2004 on the strength of the Government resolution dated 29.7.2011. He has, accordingly, submitted that the clarification issued by the Director, Primary Education on 3.9.2012 is contrary to the decision dated 29.7.2011 as also the observations made in the judgment of the Division Bench of this Court in the case of Chandra Kanta v. the State of Bihar and ors., reported in 2010(4) PLJR 732. He has also relied on an order of this Court dated 7.3.2013 in C.W.J.C. No. 860/2013 (Nageshwar Mahto and ors. V. the State of Bihar and ors.).

Per contra, learned counsel for the State has submitted that there is no flaw in the order of the Director, Primary Education dated 3.9.2012 which is not only in keeping with the provisions of statutory Bihar Elementary Teachers Appointment Rules, 1991 but also in keeping with the scope of the Government resolution dated 29.7.2011. In this context he has also explained that the Government resolution dated 29.7.2011 had been issued specifically for particular category of teachers who in terms of the earlier executive instruction were granted Matric trained pay scale on the basis of their having higher qualification and in fact were sought to be subjected to recovery on account of revision of their date of grant of Matric trained pay scale with effect from the date of passing of their examination. He has further submitted that the Division Bench judgment of this Court in the case of Chandra Kanta (supra) was taken into account in a subsequent order of this Court in the case of Rahul Kumar and Others Vs. The State of Bihar and Others, , wherein it was held that the case of Chandra Kanta (supra) was not to be made applicable in all cases. Finally he has also sought to distinguish the order of the learned Single Judge in the case of Mageshwar Mahto (supra) on the ground that the same was passed on an earlier unreported judgment in C.W.J.C. No. 13734/2012 (Kr. Rajesh Pandey v. State of Bihar) and its analogous cases disposed of on 31.1.2013 but even that would not cover the case of the petitioners.

In the considered opinion of this Court the petitioners would be bound by their terms and conditions of their appointment letter. The appointment letter of petitioner No. 1 alone is on record by way of Annexure 1 wherein it has been clearly mentioned that his appointment was being made in Matric untrained pay scale and he would be entitled for grant of Matric trained pay scale only after completing the teachers training course. Though petitioner No. 2 has not produced his appointment letter but as he has also stated that his appointment was made on compassionate ground on 4.4.2000 his appointment letter also is bound to have similar provision. Thus, in terms of their appointment letter neither the petitioners were entitled to get Matric trained pay scale before passing of the teachers training examination nor they were in fact granted such Matric trained pay scale till 29.2.2012 on which day an order was passed for their grant of Matric trained pay scale with effect from 20.5.2004. The said order dated 29.2.2012 is on record by way of Annexure 12 and the same goes to show that the resolution of the State Government bearing No. 790 dated 29.7.2011 was actually made the basis for grant of such Matric trained pay scale.

It has to be kept in mind that the said resolution dated 29.7.2011 came into existence only in terms of the observations made by the Division Bench in the case of Chandra Kanta (supra) wherein the appellants had already been granted Matric trained pay scale and were being subjected to its being withheld and recovery. The Division Bench in such cases had gone to hold that for the category of persons who had already been granted Matric trained pay scale and had also passed their training examination in June, 2005 the Government should by way of one time relaxation issue necessary orders. To that extent it would be useful to quote paragraph 30 of the Division Bench judgment of this Court in the case of Chandra Kanta (supra) which reads as follows:

"30. Coming to the last issue, we find merit in the submission advanced on behalf of the appellants that due to inability of the State Government to hold the required examination within a reasonable time, the appellants who were successful, have suffered undue hardship. In that view of the matter, when the examination could not be held within two years in spite of directions of the Apex Court and even later as per direction of this Court, we are of the view that the State Government which has the necessary powers, must take steps to relax Rule 11 of the Rules as a one time measure within a reasonable time and take a prompt decision to grant matric trained scale to the teachers who has passed the in-service training examination in June, 2005 from any date which may be found suitable and reasonable so as not to affect such teachers adversely for the unusual delay in holding the training examination. It would be reasonable and appropriate to grant matric trained scale to such teachers as indicated above from any reasonable date, may be from the date when the period of two years fixed by the Apex Court for completing the training of such teachers expired without compliance or even from 1.10.2003, i.e. when actual payment in Matric trained scale was stopped. Keeping in view the requirements of Article 14 of the Constitution, benefit of advancing the date for grant of Matric trained scale, as indicated above will also be made available to such teachers who may pass the training examination in the second attempt. For them the date will vary but benefit should be on same line as given to those who have passed in the first attempt." 7. The Government resolution dated 29.7.2011 thereafter was issued only for this category of the appellants of the cases covered by the Division Bench judgment in the case of Chandra Kanta (supra) as would be evident from the wordings of the aforementioned resolution dated 29.7.2011 quoted hereinbelow:

In fact it was this aspect which was further clarified by this Court in the case of Rahul Kumar (supra) wherein it was held as follows:

"7. In Chandra Kant (supra) noticing the promulgation of the Bihar Elementary School Teachers Appointment Rules framed on 8.10.1991 the finding is that Rule 11 prohibits grant of trained scale unless and until the incumbent has acquired the training qualification. No executive instruction could dilute the same. The ratio or the discussion cannot be deduced devoid of the facts of the case which can be noticed from para 10 of the judgment. The petitioners therein had completed their training but the examination was not being held. More over the results were published long after the examination was held. The findings are to be noticed in para 29 that no mandamus could be issued for grant of the trained scale contrary to Rule 11. It was in the special facts as noticed in para 30 of the judgment, attributable to the inability of the State Government to hold the required examination within reasonable time causing hardship and sufferance to those who had completed the training but examination could not be held, noticing the power in Rule 11 for relaxation directions were given to consider their cases in accordance with law." 9. From the conjoint reading of the observations in paragraph No. 30 of the Division Bench judgment in the case of Chandra Kanta (supra), the wordings of the resolution dated 29.7.2011, as quoted above, and the judgment of this Court in the case of Rahul Kumar (supra) it would be clear that the petitioners, who were only appointed on compassionate ground with specific terms and conditions of being granted Matric Trained Pay scale upon their passing the teachers training examination course, were not at all covered by the ratio of Chandra Kanta (supra) because neither they have been granted Matric trained pay scale prior to 29.7.2011 nor they had already passed the training examination in the year 2005. Thus, for them who had not passed their training examination in their first attempt there could be no question of granting them further relaxation so as to give them with the benefit of payment of their salary in the Matric trained pay scale on a date prior to actually passing of their Teachers Training examination. The petitioners in this regard have themselves admitted that they had passed their training examination after 2007, inasmuch as they had appeared in such examination on 31.7.2007. Thus, in no view of the matter the petitioners can take advantage of either of the Division Bench judgment in the Chandra Kanta (supra) or follow up resolution dated 29.7.2011.

10.

As a matter of fact it is this aspect which has also sought to be clarified in the impugned order passed by the Director, Primary Education on 3.9.2012 which is more or less by way of clarification in respect of a query made by the District Education Officer, Saharsa. The said order dated 3.9.2012 for the sake of clarity and convenient is quoted hereinbelow:

11.

The said decision of the Director, Primary Education infact is in complete conformity with the Bihar Elementary Teacher Appointment Rules, which reads as follows:

12.

As would be evident a teacher appointed in untrained Matric pay scale would be entitled in terms of the aforementioned Rule 11 only with effect from the date of passing of his training examination and therefore, no executive instruction is capable of supplanting the statutory Rules, an aspect which was also covered by the Division Bench in the case of Chandra Kanta (supra), wherein it was held as follows:

"27. Rule 11 of the Rules has already been extracted and noticed earlier. The wordings of the entire scheme in that rule are clearly mandatory and do not permit any deviation through an administrative decision by the State. In the matter of grant of scale while appointing untrained teachers under the Rules framed under Article 309 of the Constitution, the State Government had no scope to obliterate the qualification between trained teachers and untrained teachers. They had to be appointed and placed in two different scales and the untrained teachers can get the other higher scale only on fulfilling the conditions prescribed in Rule 11, i.e. only on passing the training examination. Earlier executive decision of 1989 may exist in respect of earlier appointees but that cannot be applied to those elementary teachers who were appointed after the framing of the Rules of 1991. For such later appointees like the appellants the Rules under Article 309 of the Constitution alone shall hold the field, particularly when the provisions in Rule 11 are found to be mandatory. Rules under Article 309 of the Constitution have legislative flavour and executive decision in the light of power available to the State under Article 162 of the Constitution can not supplant the Rules framed under Article 309 of the Constitution. On facts, it is found that decision of 1989 do not supplement the Rules rather they clearly run counter to such rules. Hence, for the teachers appointed after enforcement of 1991 Rules, the decision of 1989 cannot coexist in the matter of appointment in the scales prescribed by the Rules.

28.

Such later appointees have to be granted pay scales as determined by the Government from time to time in accordance with Rule 11 of the Rules. So far agreement requiring acceptance of recommendations of FAC is concerned, there can be no quarrel with the proposition of law that there can be no estoppel against statute. Further, a writ court cannot issue mandamus against provisions in the Rules which do not suffer from any legal infirmity. The judgment of Apex Court in the case of Purushottam Lal v. Union of India (supra) was in an entirely different fact situation and related to grievance by members within a particular service. It has no application in the facts of the present case.

29.

In view of aforesaid discussions and findings, we find ourselves in agreement with the views of the learned Single Judge that grant of lower scale of pay to untrained teachers is in conformity with Rule 11 of the Rules and is also based on sound reasons. Hence, it is not possible to issue a writ of mandamus to implement the recommendations of the FAC. Grant of matric trained scale to untrained teachers cannot be directed by this Court, particularly due to provisions in the Rules. In that view of the matter the Apex Court also in the case of Ram Vijay Kumar and others v. State of Bihar and others (supra) directed only for completing the training of untrained teachers within two years."

13.

Thus, in view of the statutory provisions this Court would not find any error in the impugned order passed by the Director, Primary Education on 3.9.2012 and the petitioners'' challenge to the same must be rejected.

14.

The reliance placed by the learned counsel for the petitioners on unreported judgment in the case of Nageshwar Mahto (supra) is also misconceived, firstly because the date of appointment of petitioner No. 2 is 4.4.2000 and therefore, whatever has been said in the aforementioned order would not apply to the facts of the present case. As a matter of fact from the reading of the aforementioned order it appears that all the petitioners of the case of Nageshwar Mahto (supra) were appointed in 1994 and they had sought quashing of the impugned order of this case dated 3.9.2012 which was not allowed, rather their cases were disposed of in view of the earlier unreported judgment dated 31.1.2013 in the case of Kr. Rajesh Pandey (supra). From the reading of the judgment of Kr. Rajesh Pandey (supra) it would, however, become clear that the case of petitioner No. 2 will not be at all covered because the learned Single Judge had categorically gone to hold as follows:

"First of all, I would refer to resolution dated 29.07.2011(Annexure-6), and then to 10.02.2012(Annexure-8), on which the petitioners have heavily relied. The resolution dated 29.07.2011 was issued in background of direction of the Division Bench of this Court in L.P.A. No. 412 of 2003 dated 23.09.2010. The resolution stated in clear terms that 1991, Rules provide for appointment of both trained and untrained teachers. The trained teachers as per Rules would get Matric trained scale, whereas untrained teachers would get Matric untrained scale and only on passing of training examination they would get Matric trained scale. Clause-I of the resolution stated that Director, Primary Education vide letter No. 998 dated 07.06.1995 approved grant of trained scale of Rs. 1200-2040 to even untrained teachers having higher qualification. On 01.01.1996, the pay scale of State employees was revised. The Finance Department vide its Resolution No. 660(B)(ii) dated 06.02.1999 approved the scale of Rs. 4500-7000 with effect from 01.01.1996 to trained teachers also, and pay scale of Rs. 3050 - 4590 was approved for untrained teachers. Again in view of agreement with the teachers, the untrained teachers having higher qualifications were granted scale of Rs. 4500 - 7000 with the condition that they have completed their training within a year.

Clause-II of the letter states that in view of decision dated 17.05.2010 in C.W.J.C. No. 7103 of 2009, the pay scale of Matric untrained teachers were lowered to Rs. 3050 - 4590 with effect from 01.01.1996. The excess amount paid was directed to be recovered. Sub-clause (ka) of Clause-II states that the L.P.A. Bench vide its order dated 23.09.2010 passed in LPA No. 412 of 2003 directed that if untrained teachers having higher qualification, passed the training examination in first attempt they will be entitled to Matric trained scale with effect from 01.10.2003. Further more, as per the Clause, if such untrained teachers, who pass the training examination in second attempt, would get Matric trained scale from the date they appeared in the examination held after 01.10.2003, as a one time measure.

Thus the resolution in no manner indicate that even appointees post 1994 would also get Matric trained scale with effect from 01.10.2003, though they will pass training examination in 2005 or even later.

The letter dated 10.02.2012 of Principal Secretary, Education Department was issued by way of clarification to the Government order dated 29.07.2011 in view of queries made by District Superintendent of Education. The letter stated that decisions of Chandra Kant case would not only benefit appointees of 1994, but also untrained appointees of 1999-2000. It is this clause, on which the petitioners have heavily relied. If the contention of the petitioners is to be accepted, then even appointees of 1999-2000 would get matric trained scale w.e.f. 1.10.2003, irrespective of passing the training examination in 1st attempt in 2005 or 2010 or even 2012, which was not the intent of the decision and directions in Chandra Kant case.

In my view, the Principal Secretary, Education Department misdirected himself in construing the directions in Chandra Kant case as well as resolution dated 29.07.2011. The resolution of the Government dated 29.7.2011 contained in Clause 2 (ka) was with respect to appellants of Chandra Kant case and batch of appeals of 2003 heard analogous. In fact the resolution of the Government stated that vide letter No. 998 dated 07.06.1995 Matric Trained Scale was approved in case of untrained teachers having higher qualification. A revised pay was made effective from 01.01.1996 approving Rs. 4500 - 7000/- for trained teachers and Rs. 3050 - 4590 for untrained teachers. Subsequently, the scale of untrained teachers having higher qualification was enhanced to Rs. 4500 - 7000/-, vide Finance Department.

It would appear from resolution dated 29.07.2011 that it was issued in back ground of Chandra Kant case and all similarly situated as a one time measure. However, the Principal Secretary vide his letter dated 10.02.2010 enlarged the benefits to cover the cases of teachers who were appointed much later in the year 1999 and 2000. The Division Bench observed that the appellants therein had suffered hardship all these years since their appointment in 1994, and in fact received matric trained scale up to 2003, till it was stopped. In such circumstances, the Division Bench observed that if these appellants pass training examination in first attempt or even in second attempt they be given matric trained scale from 1.10.2003 as a one time relaxation of Rule 11 of Rule, 1991 which envisages grant of matric trained scale to untrained teachers only from the dates they pass the training examinations.

The letter of Principal Secretary is not only in the teeth of Rule 11 of 2011 Rules but also not in consonance with the direction of Division Bench. The benefit of Division Bench order was to accrue to appellants of Chandra Kant case and at the most to other similarly situated and not to appointees of 1999 and 2000 or of later year.

It is difficult to perceive that untrained teachers appointed in 1999-2000 would get matric trained scale w.e.f. 1.10.2003 even though they pass training examination in 2005 or 2010, though Rule 11 mandate such scale would be admissible only from date of passing of the examination. The view of mine finds support from judgment of this Court in similar circumstances in the case of Rahul Kumar and Others Vs. The State of Bihar and Others, . In the said case the applicant was appointed in 2001, training completed in 2009, still on basis of executive order dated 29.7.2011 (Annexure-6) and 10.2.2012 (Annexure-8), he claimed matric trained scale w.e.f. 1.10.2013. Negating the claim of the petitioners mainly on the ground that resolution of the Government dated 29.07.2011 would confine only to appellant of Chandra Kant case and batch of cases appointed in 1994, the learned Judge observed as follows: The relevant extract of judgment is quoted herein below:

"Reliance by the petitioners on the orders dated 29.7.2011 and 10.2.2012 appears misconceived. They are administrative orders. They have to remain subservient to Rule 11. Additionally they have been issued in the background of the facts in Chandra Kant (supra). An administrative order cannot be interpreted and read in a manner to include into it something more which is not to be found in the judicial order from which it emanated. It has already been discussed that the facts in Chandra Kant (supra) are factually different from the present case. In para 26 of Chandra Kant (supra) it has been noticed that it was causing hardship and therefore there was a need to take decision as a one time measure. The Court is satisfied the aforesaid observation is sufficient to hold that the petitioners cannot rely upon it as a precedent also." Thus there is no indication in the judgment of Division Bench to infer that the benefits of one time relaxation of Rule was to be extended to appointees of 1999-2000 so as to confer them matric trained scale w.e.f. 1.10.2003 even if they pass the training examinations much subsequent to it. It is relevant to state that appellants of Chandra Kant and analogous batch of appeals were appointed in 1994. They struggled to get trained scale, which government acceded by making an agreement with the employees twice between 1994 and 1999 itself. Some of them even moved Hon''ble Apex Court with a grievance that they were denied opportunity of getting higher scale as no training was provided, much less, taking of examination. The Apex Court in S.L.P. No. 23187/97 disposed of on 5.9.1997 directed that training be granted within two years. At the relevant time, the appointees of 1999-2000 were not even recruited. Further more, the appointees of 1994 moved this Court as back as in 2011 itself and the matter was finally settled in 2010 vide Chandra Kant case. In such circumstance, the Division Bench noticing the hardship, allowed one time relaxation of provision of Rule 11. As observed by learned Single Judge, the judgment ought not to be inferred to include reliefs or benefits, it did not intend to confer to latter appointees of 1999 to 2000."

15.

The underlined portion of the aforementioned judgment, therefore, would automatically distinguish the applicability of the judgment in the case of Kr. Rajesh Pandey (supra) to the facts of the case of present petitioner No. 2, whose date of appointment on compassionate ground is only 4.4.2000 and he cannot be heard to say that he ought to have been given the Matric trained pay scale with effect from 2004.

16.

As with regard to petitioner No. 1 the applicability of the aforementioned judgment it has to be only taken into account that petitioner No. 1 also did not pass the examination in the first attempt which was held in the year 2004. Whatever observations were made by the learned Single Judge, therefore, were not only in the facts of those cases but in fact must be held to be not applicable to the case of petitioner No. 1 because of his appointment on compassionate ground with specific terms and conditions of his being entitled to grant Matric trained pay scale only with effect from the date of passing of his examination. Petitioner No. 1 is not an appointee through Bihar Public Service Commission who could have got the benefit of being denied an opportunity to appear in the training examination. In fact there is nothing on record as to when for the first time petitioner No. 1 had requested for being sent on training and when had he actually completed his training. All that has been said about him is that he had appeared in 2005 examination and had failed in such examination whereafter he moved this Court for being allowed to appear in the second examination held in the year 2007 and had passed only that examination. Thus, when this Court has not found any flaw in the order of the Director, Primary Education clarifying that for the persons appearing in the second examination and passing the same thereafter he would be entitled for grant of Matric trained pay scale only from the date of passing of the examination, this Court also does not find any error even in the consequential order which has been passed by the District Education Officer, Begusarai shifting the date of 17 teachers including the two petitioners from 20.5.2004 to 21.7.2007. The consequential impugned order dated 2.5.2013 contains good and germane reasons for revising such date of Matric trained pay scale which reads as follows:

17.

As with regard to the last issue that the petitioners should not be subjected to recovery this Court would not find any error in the impugned order wherein the excess amount drawn by the petitioners have been sought to be recovered in twenty installments. The issue relating to recovery of an excess amount drawn by an employee to which he is not entitled stands settled in the judgment of the Apex Court in the case of Chandi Prasad Uniyal and Others Vs. State of Uttarakhand and Others, , relevant portion whereof reads as follows:-

"13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.

14.

We are concerned with the excess payment of public money which is often described as "taxpayers'' money" which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

15.

We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J. Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered."

18.

That would bring this Court to the last issue as to whether the petitioners on account of cancellation of the earlier examination would be deemed to have passed their first examination? The petitioners rely on an order of this Court dated 27.7.2007 in C.W.J.C. No. 11779/2005. The said order, however, does not indicate as to whether no examination was held in the year 2004. In fact such examination was held in the year 2004 as is apparent from reading of paragraph 18 of the writ application:

"18. That it is stated and humbly submitted that on the basis of the Advertisement No. 21 of 2004 issued by the Bihar School Examination Board, Patna a committee was constituted for conducting the practical examination of Primary Teachers Training Examination, 2004 for the five papers. It is submitted that Shri Lallan Jha, the District Education Officer, Bhagalpur was made a co-ordinator of the Primary Teacher''s Training Examination 2004 of External Evaluation Committee, Munger and the District Education Officer, Jamui, District Superintendent of Education, Sheikhpura and District Superintendent of Education, Munger were made the Members of the aforesaid External Evaluation Committee while the Principal of the concerned Primary Teachers Training Colleges was the Centre Superintendent for practical examination of Primary Teachers Training College, Haweli Kharagpur, District Munger Centre for conducting the practical external examination (verbal assessment test)." 19. The petitioners in fact have made a grievance that though they had appeared in the examination but they were not declared successful, whereafter they had to appear in the second examination which was held in the year 2007. The petitioners have their own explanation that for the reasons that they were denied to appear in the practical examination of the first examination held in the year 2004 they should be treated to have passed their first examination in the year 2007 and thereby be also given the benefit of their date of examination of the year 2004 for its being made basis for grant of Matric trained pay scale. This Court infact is not at all inclined to accept such plea on behalf of petitioner No. 2 in view of his appointment being itself made in the year 2000 on compassionate ground and thus, ineligible for grant of Matric trained pay scale in the year 2004.

20.

This Court however would still give both the petitioners an opportunity to explain their cases before the Director, Primary Education as with regard to their entitlement of Matric trained pay scale with effect from 20.5.2004. In case the petitioners file their separate representation before the Director, Primary Education confining their grievance for revision of their date of grant of Matric trained pay scale the same would be examined separately in case of petitioner No. 1 and petitioner No. 2 because of their different date of appointment. The Director, Primary Education will firstly examine as to when the petitioner No. 1 was sent for training and how the petitioner No. 2, appointed in the year 2000 could be allowed to go in training alongwith petitioner No. 1. He will further examine as to whether the petitioners'' result of 2004 examination was published and they were declared to have failed in their such examination so as to hold the petitioners being covered by the ambit of the impugned order dated 3.9.2012. The Director, Primary Education on consideration of all the relevant aspects including those raised by the petitioners in their separate representation shall pass his speaking orders expeditiously in the light of observations and findings recorded in this judgment.

21.

With the aforementioned observations and directions, this application is disposed of.

Prabhat Kumar and Others vs State of Bihar and Others

Judgment