Indradeo Kumar Singh v. State of Bihar — 1992 DIGILAW 381 (PAT)

JUDGMENT : S. B. Sinha & G. C. Bharuka, JJ. - In this writ application the petitioner has sought for issuance of writ of or in the nature of mandamus directing the respondents to pay his salary. 2. The fact of the matter lies in a very narrow compass. 3. The petitioner was appointed as an Assistant Teacher by the District Supdt. of Education, Gaya on 3.5.1988; pursuant whereof he joined the said school on 10.5.1988. 4. According to the petitioner he is a physical trained teacher. The petitioner has contended that despite the fact that he is serving the school for a long time, his due salary has not been paid. 5. In this case of counter affidavit has been filed wherein inter alia it has been contended that the petitioner was allegedly appointed in the year 1985 out of the waiting list in a matter trained general category. While the matter relating to payment of salary to the petitioner came up for consideration, it was found that the petitioner does not hold any diploma or degree in teachers training but he is a holder of physical training certificate. Pursuant to a direction made by the Deputy Director of Education (Elementary School), the matter was placed before the District Education Establishment Committee. An explanation was also called for from the petitioner. 6. It was however, found in the appointment letter, it was specifically stated that the appointment of the petitioner was being made as a' matric trained teacher and thus he had knowledge about the said fact. 7. According to the respondents, it was thus the duty of the petitioner to point out that he was not a trained teacher but he has obtained a certificate in Physical Training. It was, thus, found by the District Education Establishment Committee in its meeting dated 13.7.1991 upon consideration of the explanation of the petitioner and other relevant materials that the petitioner has obtained an offer of appointment on a wrong premise and thus the services of the petitioner should be terminated. However, it was directed that the salary of the petitioner shall be paid for the period, he has actually worked. 8. Mr. Gupta, learned counsel appearing on behalf of the petitioner has submitted that the petitioner's services shall be directed to be continued inasmuch as the petitioner can be paid his salary as an untrained teacher. 9. However, it was directed that the salary of the petitioner shall be paid for the period, he has actually worked. 8. Mr. Gupta, learned counsel appearing on behalf of the petitioner has submitted that the petitioner's services shall be directed to be continued inasmuch as the petitioner can be paid his salary as an untrained teacher. 9. The learned counsel in this connection has strongly relied upon a decision of this court in Kumar Kant Choudhary vs. District Education Office, Dalbhanga & ors. reported in 1979 BBCJ 184 as, also in Smt. Renu Kumari vs. The State of Bihar in CWJC No. 7786 of 1989. 10. Mr. J.P. Karn learned Standing Counsel No. 5, on the other hand, submitted that in terms of the policy decision of the State only 5% of the teachers are, to be appointed in the schools in each block for imparting physical training education to the students. 11. Learned counsel submitted that the duties and functions of the Assistant Teacher and the duties and functions of the teachers appointed' for the purpose of giving physical training arc absolutely distinct and separate and thus the petitioner could not have been appointed, in the post of an Assistant Teacher. 12. In this case it is not disputed that the petitioner is not a holder of teachers training certificate but he is merely a holder of physical teachers training certificate. It has also not been disputed at the bar-that the duties and functions of an Assistant Teacher and duties and functions of a Teacher having a certificate in physical training arc absolutely different. 13. The State has issued a circular letter bearing No. 197 dated 17.2.1981; from a perusal whereof it appears that 5% posts are reserved for appointment of Physical Trained teachers. This circular letter upon which Mr. himself has placed reliance upon therefore, is a pointer to the fact that only 5% teachers have to be appointed as Physical trained teachers for giving physical training. In this view of the matter it is manifest that the petitioner could not have been appointed as an Assistant Teacher. 14. The decisions cited by the learned counsel for the petitioner are also of no assistance to the petitioner. 15. In this view of the matter it is manifest that the petitioner could not have been appointed as an Assistant Teacher. 14. The decisions cited by the learned counsel for the petitioner are also of no assistance to the petitioner. 15. In Kumar Kant Choudhary vs. District Education Officer Darbhanga and others reported in 1979 BBCJ 184 it has merely been held that a physical trained teacher is also a teacher and he should have been granted the scale of pay admissible to a trained Teacher. There is no dispute so far as this proposition of law is concerned. 16. In Renu Kumari’s case (Supra) a Division Bench of this court .has held in the facts and circumstances of this case, that as the petitioner thereof was allowed to continue on the post of Assistant Untrained Teacher, she should be given her arrears of salary and current salary. The Division Bench held : "This does not however, give any entitlement to the petitioner to continue on the post if otherwise under the rules she is not so entitled." 17. In this case it has been held by the District Education Establishment Committee that the petitioner is not entitled to hold the post. Further in this case the District Education Establishment Committee, itself directed that the petitioner shall be paid his salary for the period during which he had actually worked. 18. In this view of the matter, In our opinion, no relief can be granted to the petitioner. 19. Further as noticed hereinbefore, in this case the petitioner has deliberately not made any prayer for quashing the order of termination which is contained in Annexure-A to the counter affidavit. 20. The petitioner has thus taken recourse to suppression veri and suggestio falsi inasmuch as he merely prayed for payment of salary to him, although the same has already been directed to be paid by the District Education Establishment Committee itself as is evident from Annexure-A to the counter affidavit. 21. For the reasons aforementioned, the petitioner is not entitled to any relief and the writ application is dismissed accordingly. 22. In the facts and circumstances of the case, there will be no order as to costs.