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2000 DIGILAW 462 (PAT)

Ram Nath Sinha v. State Of Bihar

2000-03-24

ASOK KUMAR GANGULY, B.P.SINGH

body2000
Judgment B.P.Singh and A.K.Ganguly JJ. 1. This Letters Patent Appeal is directed against the judgment and order of a learned Judge of this Court dated May 9, 1995 in CWJC No. 5112 of 1991 dismissing the writ petition filed by the appellant claiming the scale of Headmaster with arrears since the date of his appointment as Headmaster. The appellant also prayed for quashing of the order of the Director, Primary Education, rejecting his claim. 2. The appellant was appointed as an Assistant Teacher in District Board Middle School on 19.9.1960 and was thereafter appointed as an Assistant teacher in Middle School, Phuldih & Government school. By order dated 10.4.1962 he was appointed as a Headmaster of the Dihari Middle School. At the relevant time when the appellant was appointed as a Headmaster, an I.A. trained teacher was eligible for appointment as a Headmaster of a Middle school. The appellant being an I.A. trained teacher was, therefore, eligible for appointment as Headmaster. The appellant held the post of Headmaster of different schools, but he was aggrieved by the fact that he was not being paid the scale payable to a Headmaster and the distinction was sought to be made on the ground that since he was an I.A. trained teacher, he was not entitled to the higher scale of Headmaster for which the minimum qualification was B.A. trained. 3. The appellant filed a writ petition being CWJC 7711 of 1990 which was disposed of by this Court by order dated 8.4.1991 directing the appellant to make a representation to the competent authority which was required to dispose of the representation in accordance with law. The appellants representation was rejected by order dated 7th of June, 1991 by the Director, Primary Education. The appellant challenged the said order by filing the writ petition being CWJC No. 5112 of 1991 which was rejected by a Division Bench of this Court by order dated 22.7.1992. The appellant preferred SLP No. 14963 of 1992 which was ultimately allowed by order dated 9.1.1995 by the Supreme Court of India and the Hon ble Court directed a fresh hearing of the matter on merits without reference to the order under appeal. 4. The writ petition fifed by the appellant was again heard by this Court and by the impugned judgment and order dated 9.5.1995, the writ petition was dismissed. 4. The writ petition fifed by the appellant was again heard by this Court and by the impugned judgment and order dated 9.5.1995, the writ petition was dismissed. Against the dismissal of his writ petition, the appellant preferred SLP No. 19163 of 1995 before the Supreme Court of India, but by order dated 4.9.1995, the Special Leave petition was dismissed as withdrawn with liberty to the appellant to go in for filing a Letters Patent Appeal. The appellant thereafter has preferred this, appeal. 5. It is not in dispute that the appellant is an I.A. trained teacher and was appointed for the first time as Headmaster on 10th of April, 1962. The matter relating to the pay scales of teachers employed in the middle schools of the State Government was then governed by the resolutions and circulars of the Govt. of Bihar and the provisions of the Bihar Education Code, 1944. By its order dated 19th January, 1957, much before the appointment of the appellant as a Headmaster, the Government of Bihar had issued a letter on the subject of fixation of standard establishment for Middle and Primary Schools laying down the qualification for the teachers to be employed in such schools. Modifying its earlier orders dated 17th May, 1949 and 27th May, 1949 and in supersession of all previous orders on the subject, the State Government laid down the standard of authorised establishment for Middle and Primary Schools in the State along with number of classes to be maintained in each and the maximum and minimum qualifications of teachers employed in them. So far as the Middle schools were concerned, it was laid down that the normal qualification of the Headmaster shall be a trained graduate and minimum qualification a trained I.A or I.Sc. It also laid down minimum rates of pay for Headmaster and Assistant Headmaster. The Headmasters were placed in four categories with different minimum rates of pay. The four categories were those of trained graduate, untrained graduate, I.A. or I.Sc, C.T and untrained I.A or I.Sc. So far as the trained graduates were concerned, their pay was fixed at Rs. 55/- while that of trained I.A. or I.Sc. the minimum pay was prescribed as Rs. 45/-. So far as untrained graduates and untrained I.A or I.Sc. The four categories were those of trained graduate, untrained graduate, I.A. or I.Sc, C.T and untrained I.A or I.Sc. So far as the trained graduates were concerned, their pay was fixed at Rs. 55/- while that of trained I.A. or I.Sc. the minimum pay was prescribed as Rs. 45/-. So far as untrained graduates and untrained I.A or I.Sc. teachers were concerned, their minimum pay was even lower it would thus appear that even at the time when the appellant was appointed as a Headmaster, a trained graduate headmaster was entitled to a higher pay than an intermediate trained headmaster. 6. The next Government order is contained in Letter No. 1074 dated 10.7.1969 which provided that those intermediate trained teachers who were appointed to the post of headmaster of Middle school prior to that date would be allowed to continue on the post of Headmaster against the Intermediate trained scale. By letter No. 1506 dated 12.5.1970 the Government decided that such Inter-mediate trained headmasters who had been appointed before 10.7.1969 would be entitled to the scale admissible to graduate trained headmaster provided they enhanced their educational qualification and became gradautes. As soon as such intermediate trained headmaster obtained a graduation degree, he would immediately be entitled to the graduate trained scale without waiting for vacancy in that scale, and regardless of his seniority. This was in the nature of a concession to the intermediate trained Headmasters, because by then the minimum qualification for a Headmaster of a Middle school was B.A. trained. In normal course even on attaining higher qualification such headmaster could have been considered for grant of graduate trained scale upon there being vacancies in the graduate trained scale, and in order of their seniority inter se. This rule was relaxed in their case and as soon as they became graduates, they were entitled to the graduate trained scales regardless of their seniority and availability of vacancies. It is the categoric case of the State that no intermediate trained teacher has been given the graduate trained scales unless he has improved his qualification. 7. It may here be noticed that the Bihar Non Government Elementary Schools (Taking Over of Control) Act, 1976 was promulgated on 31.12.1976 and the effective date for take over of schools was 1.1.1971. It is the categoric case of the State that no intermediate trained teacher has been given the graduate trained scales unless he has improved his qualification. 7. It may here be noticed that the Bihar Non Government Elementary Schools (Taking Over of Control) Act, 1976 was promulgated on 31.12.1976 and the effective date for take over of schools was 1.1.1971. Section 8 of the Act empowers the State Government to make such orders as appears to it, to be necessary to give effect to the provisions of the Act or to remove any difficulty in that regard. 8. The notification issued on 15.9.1981 categorised the posts of Headmaster and Assistant Teacher in Middle schools in six categories laying down the minimum qualification. The pay scale was linked with the educational qualification and the minimum qualification prescribed for Headmaster was graduate trained. It is also not disputed that promotion/appointment from one grade to another was to be made on the basis of qualification and seniority. 9. By resolution No. 2071 dated 4.8.1987 of the Finance Department, a separate independent scale of the post of Headmaster of Middle school, irrespective of the educational qualification was prescribed, which was Rs. 850-1360/-for the Headmaster (trained graduate) and the trained graduate Assistant teacher, The matter was referred to the Anomaly Removal Committee and the Committee made its recommendation revising the scale of Headmaster who were given the scale of Rs. 889-1510/- with effect from 1.3.1986. To give effect to this recommendation of the Anomaly Removal Committee, the resolution dated 4.8.1987 was issued. 10. From the resolution and the notifications noticed earlier, it would appear that at ail times, and since much before the appointment of the appellant as Headmaster of a Middle school, different pay scales have been prescribed for Headmasters of Middle schools depending upon their educational qualification. That distinction has been maintained in the several resolutions and notifications issued by the Government of Bihar from time to time. It will be noticed that the minimum qualification prescribed for the Headmaster of a Middle school after 1.1.1971 is B.A. trained, and therefore strictly in terms of the resolution, I.A. trained teacher is not eligible for appointment as Headmaster of Middle school. It will be noticed that the minimum qualification prescribed for the Headmaster of a Middle school after 1.1.1971 is B.A. trained, and therefore strictly in terms of the resolution, I.A. trained teacher is not eligible for appointment as Headmaster of Middle school. However, the Government treated the cases of Intermediate trained teachers, who had been appointed as Headmaster before 10.7.1969, on a special footing because they had been appointed Headmasters of Middle schools at a time when I.A. trained teachers were eligible for appointment as Headmaster of Middle school. Though they were continued as Headmasters of Middle schools, they were continued in the I.A. trained scale. Later the Government decided that such I.A trained Headmasters should also be given benefit of graduate trained scales upon enhancement of their educational qualification, and this necessitated the issuance of letter dated 12.5.1970 under which such Intermediate trained Headmasters were held entitled to graduate trained scale as soon as they enhanced their qualification and became graduates. The rule was relaxed to enable them to get graduate trained scales immediately upon their acquiring the necessary qualification, without waiting for availability of vacancies in the graduate trained scale and regardless of their inter se seniority. These resolutions and government orders have not been challenged before us. The learned Judge has carefully considered the resolution and orders issued by the Government from time to time and we find ourselves in agreement with him that the relevant resolutions, circulars and orders do justify the stand of the respondent that intermediate trained Headmaster, though he is entitled to continue in the intermediate trained scale as headmaster, is not entitled to the pay scale prescribed for graduate trained Headmaster. Though the minimum qualification prescribed for a Headmaster of a Middle school is graduate trained, yet intermediate trained Headmasters, like the appellant, have been allowed to continue in intermediate trained scaie because they were appointed at a time when they were eligible for such appointment. However they become entitled to the graduate trained scale only upon their acquiring -higher qualification, namely, graduate trained. The difference in the pay scales of intermediate trained and graduate trained Headmasters has always been maintained, and this difference in pay scales is justified on the basis of their educational qualification. However they become entitled to the graduate trained scale only upon their acquiring -higher qualification, namely, graduate trained. The difference in the pay scales of intermediate trained and graduate trained Headmasters has always been maintained, and this difference in pay scales is justified on the basis of their educational qualification. The Government has made it quite clear to them that they would be entitled to the higher scale, namely, graduate traine scale, as soon as they become graduates. The submission, therefore, that every Headmaster of Middle school is entitled to the graduate trained scale, must be rejected. The minimum qualification presently prescribed for such Headmasters is graduate trained and the pay scale of such Headmasters has been prescribed on this basis. The cases of the appellant, and other like him, who were intermediate trained Headmasters, stand on a different footing because they are not eligible for the post of Headmaster of Middle School, but they have been continued since they were appointed at a time when an intermediate trained teacher could be appointed as a Headmaster of a Middle school. Their continuance is in the intermediate trained scale, subject to the condition that they will be entitled to the graduate trained scale as soon as they acquire graduate trained qualification. 11. In the result, we find no merit in this appeal and the same is, accordingly, dismissed. A.K.Ganguly, J. 12 I agree.