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2003 DIGILAW 438 (PAT)

Arvind Kumar v. State Of Bihar

2003-04-17

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. In all these writ applications, common questions of law and facts arise and as such they are being disposed of together. 2. Petitioners are untrained teachers and they are aggrieved by the decision of the State Government whereby they have 3een denied the scale of pay of trained eachers and excess payment made to them have been directed to be recovered. 3. Brief history of the case leading to present litigation is enumerated hereinafter. Prior to coming into torce of Bihar Elementary Schools Appointment Rules, 1991, for appointment as Assistant Teachers in Elementary Schools minimum qualification prescribed was passing the Matriculation examination coupled with certificate of passing the Basic Teachers training course of two years duration i.e. trained Matriculates were eligible for appointment. However, in certain subjects like Urdu and Sanskrit, trained Matriculates were not available, hence untrained persons were also appointed as teachers. The nomenclatures given to the teachers who were trained and untrained were Matric trained teachers and Matric untrained teachers respectively. In the category of Matric untrained teachers; there were certain Assistant Teachers who possessed higher qualification i.e. Intermediate, Graduates degree or even Post Graduate degree and different pay scales existed for Matric trained and Matric untrained teachers. 4. The Governor of the State, in exercise of the powers conferred under Article 309 of the Constitution of India framed Bihar Elementary School Appointment Rules, 1991 (hereinafter referred to as the Rules) which paved the way for appointment of untrained persons as teachers. Rule 5 of the said Rule which is relevant for the purpose reads as follows : 5. From a plain reading of the aforesaid provision, it is evident that a candidate who had passed the Matriculation or equivalent examination with minimum 45% of marks is eligible for appointment as Assistant Teacher in the Elementary School. Rule 11 of the Rules provided for appointment and the admissibility of the scale of pay, same reads as follows : 6. Rule aforesaid makes it implicit that a candidate who is trained shall be appointed in a Matric trained scale and those candidates who are untrained shall be appointed on the basic pay of Matric untrained scale with the rider that in case such appointees do not go for training, when deputed without any justification, their services shall be terminated. Rule aforesaid makes it implicit that a candidate who is trained shall be appointed in a Matric trained scale and those candidates who are untrained shall be appointed on the basic pay of Matric untrained scale with the rider that in case such appointees do not go for training, when deputed without any justification, their services shall be terminated. It also provided that after the training examination shall be held and in case such of the candidates who do not pass shall be provided with another opportunity and in case such candidates fail in the second attempt, their services shall be terminated. Said Rule also contemplates payment of stipend during the period of training and the said rule made it clear that salary shall not be paid for the training period. The rule also provided that untrained teacher after passing the examination shall be given the Matric trained scale. It is relevant here to state that at that particular point of time the scale of pay of the Matric trained teachers was Rs. 1200 to 2040 whereas that of untrained teachers was Rs. 975 to Rs. 1540. 7. It is worth mentioning that in the light of the said rule advertisement for appointment was issued on 8.10.91 for selection of nearly 25,000 Assistant Teachers. In response thereto 19,700 candidates were selected and recommended for appointment by the Bihar Public Service Commission and out of these, 19,272 teachers have been appointed as Assistant Teach ers in various schools. Out of the total number of appointees the number of untrained Assistant Teachers are 17,281. Those Assistant Teachers including the petitioners who were recruited in the light of the qualification laid down by the Rules and not possessing the teachers training qualification were initially given the lower pay scale of Matric untrained i.e. Rs. 975-1540. 8. Even prior to the appointment of these petitioners the State Government issued resolution No. 6022 dated 12th of December, 1989 revising the scale of pay of teachers.Item No. 1 of Schedule II of the said resolution which is relevant for the purpose reads as follows : SCHEDULE II SI. No. Designation Revised pay scale 1 (a) Matric trained/Intermediate untrained/ Graduate untrained teachers Rs. 1200-2040 9. No. Designation Revised pay scale 1 (a) Matric trained/Intermediate untrained/ Graduate untrained teachers Rs. 1200-2040 9. Taking into consideration the aforesaid resolution Director of Primary Education issued memo No. 998 dated 9th of June, 1995 directing that Graduate untrained and Intermediate untrained teachers who are working against the post of Matric trained teachers be given scale of pay of Rs. 1200-2040 i.e. Matric trained scale and it was further made clear that they shall continue in the same scale of pay after training. 10. When the scale of pay of the employees of the Central Government was revised with effect from 1.1.96, the State Government to consider the demand of its employees for grant of Central pay scale constituted a Fitment Committee consisting of Mr. Justice Sarwar Ali, a retired Chief Justice of the Patna High Court as its President and Sri Shubh Kirti Mazumdar, Transport Secretary as its Secretary by resolution dated 1.2.98. The Fitment Committee recommended lower scale of pay for those teachers who did not possess the teachers training qualification regardless of their personal qualification being much higher than the qualification of Matriculation as in its opinion in the Centre there were no untrained teachers and thus on the basis of the Central Equivalence Untrained Teachers were kept at lower level. The Fitment Committee in paragraph 12.3.5 observed as follows : "12.3.5 : Matric untrained, I.A. untrained and graduate untrained teachers would be in scales below the pay scale of matric trained; it must be remembered that students have to be taught by competent personnel and any compromise in this will not be in the interest of the State nor within the parameters of our terms of reference." 11. On receiving the report of the Fitment Committee, the Government of Bihar in its Department of Finance issued resolution, dated 8.2.1999 revising the pay scale of its employees including the elementary school teachers with effect from 1.1.1996, in the light of the recommendation made by the Fitment Committee. Para 2 of this resolution reads as follows : "In certain cases, the Fitment Committee have recommended enhanced educational/ recruitment qualifications or prescribed other conditions. These have been accepted by the Government. The Departments are directed to amend the relevant Rules within a period of six months. Para 2 of this resolution reads as follows : "In certain cases, the Fitment Committee have recommended enhanced educational/ recruitment qualifications or prescribed other conditions. These have been accepted by the Government. The Departments are directed to amend the relevant Rules within a period of six months. For the present, incumbents in some of the above cases who do not fulfil the newly prescribed qualifications, the Fitment Committee have recommended lower pay scales. Those have been approved and are shown in Schedule III. For cases, where the Fitment Committee have not indicated any lower pay scale, the existing incumbents, whether fulfilling the newly prescribed qualification or not, will draw their pay in the revised pay scale in accordance with the procedure laid down in the Resolution. However, those who do not fulfil the newly prescribed conditions would not be eligible for further promotion unless they obtain the requisite qualifications. In respect of a few recommendations of the Fitment Committee as regards the pay scales, it has been decided to review them in consultation with the Fitment Committee. Annexure V lists these cases." 12. Schedule III of the Resolution which revised the scale of pay of the teaching personnel of the Government (Rajkiya) reads as follows : TEACHING PERSONNEL OF GOVERNMENT (RAJKIYA) SI. No. Designation Existing pay scale Revised pay scale Remarks 4. Matric (Trained in School other than Basic School) 1200-1800 4500-7000 5. Matric (trained in Basic Schools) 1200-1800 4500-7000 6. Intermediate (untrained Basic School) 1320-2010 3050-4590 Provided recrutment against Matric trained vacancy. 7. Intermediate (Trained) 1400-2100 8. Graduate (Untrained) 1400-2600 3050-4590 Indicated scale admissible is reaginst matric trained vacany scale to be against post to trained gradute techer. Thus the resolution of the State Government dated 8.2.99 provided for different scales of pay and made distinction between trained teachers and untrained teachers. Untrained teachers were provided a lower scale. 7. Intermediate (Trained) 1400-2100 8. Graduate (Untrained) 1400-2600 3050-4590 Indicated scale admissible is reaginst matric trained vacany scale to be against post to trained gradute techer. Thus the resolution of the State Government dated 8.2.99 provided for different scales of pay and made distinction between trained teachers and untrained teachers. Untrained teachers were provided a lower scale. 13 The aforesaid resolution of the State Government making distinction between trained and untrained teachers led to protest by the Elementary School Teachers and following the negotiation between the association of the teachers and the State Government, later came out with Circular No. 3805 dated 25.6.99 modifying the earlier Resolution dated 8.2.99 and provided that all untrained teachers who had completed one year in-service training by 1.1.96 but were unable to secure the certificate of passing the course because no examinations were held/result not published would be provisionally allowed the higher Matric trained scale of Rs. 4000-7000 subject to the condition of passing the next examination; failing which the higher emoluments paid on account of the higher scale of pay shall be recovered. The aforesaid decision of the State Government as contained in its Circular dated 25.6.99 was challenged before this Court in CWJC No. 7103 of 1999 (Binay Kumar Rai and others V/s. State of Bihar and others). A learned single Judge of this Court by order dated 17.5.2000 set aside the said Circular and remitted the matter back for consideration by the State Government in the following words : "As the aforesaid aspect has not been taken into consideration, including the orders passed by this Court, as referred above and the decision contained in letter dated 7th June, 1995 and as other similarly situated persons have been provided with the benefits, I have no other option, but to set aside the order dated 25th June, 1999 (Annexure-1) with direction to the Respondents to reconsider the cases of untrained Teachers, who hold higher qualification of Intermediate/Graduate/Post Graduate, like petitioners, for payment of Matric trained scale of pay in their favour." 14. In pursuance of the aforesaid order the matter was once again reconsidered and this time the Government decided to revert back to its earlier resolution dated 8.2.99 and issued order dated 16.1.2001 by which the recommendations of the Fitment Committee as adopted in the resolution dated 8.2.99 were restored and an order was passed for recovery of the excess amount received by teachers who did not possess the requisite qualification in teachers training. The consequence was that untrained teachers were entitled to the pay scale of Rs. 3050-4590 whereas trained teachers were given salary in the pay scale of Rs. 4500-7000. 15. In the meanwhile the recommendation of the Fitment Committee was a cause of grievance and resentment amongst different sections of the State Government employees which led to strike. Ultimately an agreement dated 7.5.99 was entered into between the State Government and the representative of the employees providing for constitution of a committee to be headed by a sitting Judge of the High Court, to look into the grievance in regard to the terms of reference and defect in regard to the scale of pay or any other mistake committed by the State Government. The agreement provided that the Committee so constituted shall submit its report as soon as possible but not later than six months. The agreement also stipulated that the recommendation made by the Committee shall be binding on both the parties. Clause 1 of the agreement which is relevant for the purpose reads as follows : 16. In pursuance of the aforesaid agreement the State Government by its resolution dated 15.1.2000 constituted a committee consisting of Honble Mr. Justice Aftab Alam a sitting Judge of this Court; known as Fitment Appellate Committee. The Fitment Appellate Committee while considering the controversy in regard to the grant of scale of pay of trained and untrained teachers, in paragraph 31.32 observed as follows : "31.32. The Committee is of the view that the present scheme of things in which a Graduate untrained has been equated with a Matric untrained teacher is not entirely fair. It hardly needs to be pointed out that the mental horizons and conceptual abilities of a Graduate is far superior to that of a matriculate. Keeping this in view, the Committee feels that the Graduate untrained teacher should also be provisionally given the scale of Matric trained teacher i.e. Rs. 4500- 7000. It hardly needs to be pointed out that the mental horizons and conceptual abilities of a Graduate is far superior to that of a matriculate. Keeping this in view, the Committee feels that the Graduate untrained teacher should also be provisionally given the scale of Matric trained teacher i.e. Rs. 4500- 7000. At the same time, in accordance with the condition laid down in the Finance Department letter no. 3805 dated 25.6.99, such teachers also should be asked to complete the training programme on their turn and clear the examination failing which they would have to revert the scale of untrained teacher (Rs. 3050-4590) and the excess payment made to them would be liable for recovery. It has also been pointed out to the Committee that the deputation of untrained teachers for training is not being done strictly by seniority which may lead to anomalies. The Committee would like that the principle of seniority must be strictly adhered to while deputing untrained teachers for training." 17. As stated earlier, Rules provided for sending untrained teacher for training and Rule 11 contemplated for payment of stipend and not salary in regular scale of pay. When such of the teachers were sent for training and were paid stipend in lieu of salary in the regular scale of pay a challenge was made to this Court in CWJC No. 1378 of 1998 (R) (Zila Prathmik Sikchak Sangh V/s. State of Bihar and others). This Court by order dated 16.1.99 allowed the writ application and found that once the Assistant Teachers were paid salary in a particular scale of pay before they were sent for training payment of stipend during training period cannot be justified. Accordingly, said decision was quashed and the matter remitted back for consideration to the State Government in accordance with law. 18. The Rules also contemplated sending of untrained teachers for training and when such of the teachers who were not sent for training, a grievance was raised and the matter ultimately travelled to the Supreme Court. Accordingly, said decision was quashed and the matter remitted back for consideration to the State Government in accordance with law. 18. The Rules also contemplated sending of untrained teachers for training and when such of the teachers who were not sent for training, a grievance was raised and the matter ultimately travelled to the Supreme Court. The Supreme Court in the case of Ram Vijoy Kumar and others V/s. State of Bihar and others (1998) 9 SCC 227 ) noting the fact that although the appointments were made on 6th August, 1994, no steps were taken for imparting training to the untrained teachers, it gave the following directions : "From the affidavit of Shri Deepak Kumar it appears that although appointment of Assistant Teachers on the basis of the impugned selection was made in August, 1994 no steps have been taken so far by the State Government for imparting training to the untrained teachers. All that has been said in the affidavit of Sri Deepak Kumar is that the training period of two years is being reduced to one year and the syllabus for the one year course is yet to be prepared. This lackadaisical approach in the matter of imparting training to persons who are required to teach students is indefensible. It is therefore, directed that the State Government shall take immediate steps to finalise the syllabus and that the training course for training of the untrained teachers should commence from 1.10.97. It must be ensured that all the untrained teachers who have been appointed as per the aforementioned selection are duly trained within two years time." (underlining mine) 19 It is common ground that a large number of untrained teachers were sent for training but examinations have not been held. 20. As stated earlier, by order dated 16.1.2001 the State Government restored the recommendation of the Fitment Committee as adopted in the Resolution dated 8.2.99, which provided the pay scale of Rs. 3050-4590 to untrained teachers and Rs. 4500-7000 to trained teachers. Said order of the State Government dated 16.1.2001 was challenged in a large number of writ applications including CWJC No. 9050 of 2001 (Shivshankar Prasad & Ors. V/s. State of Bihar and others and analogous cases), [reported in 2001 (4) PLJR 286 ] 21. 3050-4590 to untrained teachers and Rs. 4500-7000 to trained teachers. Said order of the State Government dated 16.1.2001 was challenged in a large number of writ applications including CWJC No. 9050 of 2001 (Shivshankar Prasad & Ors. V/s. State of Bihar and others and analogous cases), [reported in 2001 (4) PLJR 286 ] 21. This Court went into the validity of the order dated 16.1.2001 providing lower scale of pay to untrained teachers and the grievance in relation to not sending the teachers for training and holding the examination. A learned single Judge of this Court by order dated 14.9.2001 disposed of the writ application with the following directions : "The State Government particularly in its Department of Finance and Primary Education is directed to issue necessary notification(s) implementing the recommendations of the Fitment Appellate Committee in respect of the elementary schools teachers on the point at issue. The necessary notifications should be issued without any delay and preferably within two weeks from the date of receipt/ production of a copy of this order. According to the report of the Fitment Appellate Committee, its recommendations are to be implemented notionally with effect from 1.1.1996 and effectively from 1.4.1997. The recommendations of the Fitment Appellate Committee would cover matric and intermediate trained teachers and graduate and post graduate untrained teachers. The intermediate untrained teachers will still fall out-side the recommendation of the Fitment Appellate Committee but in their case also there will be no question of any recovery as any payment made to them was not on the basis of any misrepresentation or fault on their part. What was paid to them was under resolution, dated 18.12.1989 and the circular, dated 25.6.1999 when the circular held the field before being set aside by this Court. The respondent authorities will make arrangements for holding a special examination as suggested in the letter, dated 10.8.2001 from the Cornmissioner-cum-Secretary, Primary Education to the Administrator, Bihar School Examination Board. Though it is not before this Court in this batch of petitions, it is expected that the Board will honour this Courts wishes and request and try to hold the special examination and publish its results as early as possible, preferably within this year and in any event not later than six months from the date of receipt/ production of a copy of this order before the Board. All elementary school teachers who might have completed the one year inservice training before the last date for submission of fees and forms etc. before the Board will be eligible to appear in the examination. Their cases will abide by the recommendations made in the report of the Fitment Appellate Committee. Further, steps will be taken for sending for training all those who are yet to be sent for in-service training. The untrained teachers will be sent for in-service training strictly on the basis of seniority. After the remaining teachers have completed their training, another special examination will be held for them and depending upon their result, their case too will abide by the report of the Fitment Appellate Committee. This Court further hopes that this order will at least resolve and settle the issue of matric trained and matric untrained scales of pay admissible to the different categories of the elementary school teachers. This Court is not unconscious that some I.A. untrained teachers may still be left with the grievance that they were not sent for training though teachers junior to them were sent for the same. In order to finally resolve this controversy and in the larger interests of justice those teachers must wait till such time as they also complete the in-service training and pass the examination. However, to safegaurd their interests it is made clear that the grant of matric trained scale of pay to others will not affect the seniority position of those teachers who though being senior, were not sent for the in-service training for no fault on their part but due to the laches of the authorities. And the seniority position of all those teachers will be restored provided on receiving the in-service training they pass the next examination that may be made available to them." 22. The judgment rendered by the learned single Judge was assailed before the Division Bench in LPA No. 1202 of 2001 (Prathmik Adhyapak Sangh V/s.The State of Bihar & Ors.) [reported in 2003(2) PLJR 305 ] and analogous cases by the State Government and other aggrieved persons on the ground that the learned single Judge who decided the writ application was himself the Chairman of the Fitment Appellate Committee, hence direction to implement the recommendation of the Fitment Appellate Committee in the writ application ought not to have been directed. It is common ground that the learned Judge before taking up the matter made it known that he was member of the Fitment Appellate Committee and in case any body had any reservation the cases shall be tranferred but in chorus all the counsel insisted for hearing the matter, as the decision in the case shall have bearing on a large number of employees. Be that as it may, I am not inclined to enter into this controversy as the Division Bench by its order dated 16.4.2002 set aside the order of the learned single Judge in the following words : "After having given thoughtful consideration to the entire facts and circumstances of the case, we are of the view that it is not necessary to dwell upon the question of bias. However, the fact remains that the Honble Judge has dealt with the matter in controversy earlier as Chairman of the Fitment Appellate Committee and in that situation relying upon the dictum of Lord Hewart, C.J. as quoted above that justice should not only be done, but should manifestly and undoubtedly be seen to be done, without meaning anything against the Honble Judge, we are of the view that the order rendered by the learned Single Judge is fit to be set aside." 23. It is relevant here to state that after the decision of the learned single Judge in the case of Shivshanker Prasad (supra) the Finance Department cancelled its earlier order by which it provided for a lower scale of pay to untrained teachers and the recovery of the excess amount paid to the teachers. However, in view of the decision of the Division Bench in the Letters Patent Appeal the Finance Department by its letter dated 24th of September, 2002 revived its earlier letter dated 16.1.2001 and it directed that salary of the untrained teachers be fixed in the scale of Rs. 3050-4590 with effect from 1.1.96 and actual payment be made from 1.4.97 and the excess payment made be recovered in 20 instalments. 24. In these batch of writ applications prayer of the petitioners is to quash the letter dated 16.1.2001 and 24.9.2002 whereby untrained teachers have been provided with the scale of Rs. 3050-4590 and excess payment made has been directed to be recovered. 24. In these batch of writ applications prayer of the petitioners is to quash the letter dated 16.1.2001 and 24.9.2002 whereby untrained teachers have been provided with the scale of Rs. 3050-4590 and excess payment made has been directed to be recovered. In some of the petitions filed by those teachers who have taken training but the examinations have not been held, their prayer is to direct the respondents particularly Bihar School Examination Board to hold the examination. 25 I have heard learned counsel for the petitioners, Mr. R.K. Datta for the State and its officers, Mr. S.D. Yadav and Mr. Krishna Murari for the Bihar School Examination Board at great length. 26. Learned counsel for the petitioners submits that once untrained teachers were given salary in the same scale of pay as admissible to the trained teachers, same cannot be withdrawn on the principle of promissory estoppel. It has been pointed out that trained and untrained teachers having come in one stream, they cannot be treated differently. It is emphasised that grant of salary in a particular pay scale confers to the employee a vested right and the same cannot be divested. All the time it is emphasised that Resolution No. 6022 dated 18th December, 1989 put Intermediate untrained and Graduate untrained teachers along with Matriculate trained teachers in one pedestal. In support of the submission reliance has been placed on a decision of the Supreme Court in the case of B.S. Yadav V/s. State of Punjab (A.I.R. 1981 S.C. 561) which has been quoted with approval in the case of T.R. Kapur V/s. State of Haryana (A.I.R. 1987 S.C. 415) in which it has been observed as follows : "Todays equals cannot be made unequal by saying that they were unequal twenty years ago and we will restore that position by making a law today and making it retrospective. Constitutional rights, constitutional obligations and constitutional consequences cannot be tampered with that way. A law which if made today would be plainly invalid as offending constitutional provisions in the context of the existing situation cannot become valid by being made retrospective. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujrat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable." 27. Mr. Past virtue (constitutional) cannot be made to wipe out present vice (constitutional) by making retrospective laws. We are, therefore, firmly of the view that the Gujrat Panchayats (Third Amendment) Act, 1978 is unconstitutional, as it offends Arts. 311 and 14 and is arbitrary and unreasonable." 27. Mr. R.K. Datta however appearing on behalf of the State submits that prior to coming into force of the Rules untrained teachers were not even eligible for appointment and for the first time Rule 5 made untrained teachers eligible for appointment as Assistant Teachers in the primary schools. He points out that Rule 11(2) of the Rules in clear terms provided that those candidates who are untrained shall be granted salary in the Matric untrained scale. It is emphasised that the petitioners were appointed in Matric untrained scale of Rs. 975-1540 initially. He further points out that in the face of the aforesaid rule the order of the Director as contained in Memo dated 7th of June, 1995 providing Graduate Untrained and Intermediate Untrained teachers the scale of pay equivalent to the Matric Trained Teachers i.e. Rs. 1200-2040 in the light of the resolution of the Finance Department dated 18.12.1989 was in the teeth of the rule and the same cannot enure to the benefit of untrained teachers. It is highlighted that after the resolution dated 18th of December, 1989 the Governor of the State has framed the Rules in exercise of the powers conferred under Article 309 of the Constitution of India providing lower scale of pay to the untrained teachers and in case of conflict between the Rules and the resolution the former holds the field. 28. It is well settled that in the absence of statutory rule, executive instruction can be issued which shall hold the field. It is equally well settled that an executive instruction can be issued to supplement the rule but it cannot supplant the rule and in case of conflict between the rules and the executive instruction the former will prevail However, the decision on this question shall have no practical bearing in the present cases as the Director by its Memo dated 7th of June, 1995, in the light of the resolution of the State Government dated 18th December, 1989 provided untrained Intermediate and Graduate teachers the Matric trained scale and the same has not been withdrawn. Suffice it to say that the statutory rule had made a distinction between a trained teacher and untrained teacher and from the day they entered into service they constituted a different class. Rule never made untrained teachers equal to that of trained teachers. In the face of the statutory rule it cannot be said that the petitioners who are untrained teachers are equal to that of trained teachers. Petitioners were never equal to trained Matric teachers earlier nor they are so now except for a brief period when untrained Intermediate and Graduate teachers got Matric trained scale, in teeth of Rule 11 of Rules in view of decision of the Director dated 7.6.1995. Hence, the submission of the learned counsel for the petitioners is on totally erroneous premise and the authority relied on is clearly distinguishable. 29. As stated earlier Rule 11(2) of the Rules had made distinction between the untrained teachers and the trained teachers. However, the rule itself had not specified the Matric trained scale and untrained scale. Prior to the coming into force of the Rules Resolution dated 18th of December, 1989 had provided only one pay scale to the Matric Trained/Intermediate Untrained/ Intermediate Trained and Graduate Untrained teachers. It is submitted that there being no scale of pay provided in the Rule for untrained teachers, in view of the inherent unworkability the provision in question be read down and it be held that untrained teachers are also entitled to be granted the Matrc Trained Scale. It is submitted that there being no scale of pay provided in the Rule for untrained teachers, in view of the inherent unworkability the provision in question be read down and it be held that untrained teachers are also entitled to be granted the Matrc Trained Scale. Reliance has been placed on a decision of the Supreme Court in the case of Delhi Transport Corporation V/s. O.T.C. Mazdoor Congress and others (A.I.R. 1991 S.C. 101) and my attention has been drawn to the following passage from paragraph 214 of the judgment which reads as follows : "On a proper consideration of the cases cited hereinbefore as well as the observations of Seervai in his book Constitutional Law of India and also the meaning that has been given in the Australian Federal Constitutional Law by Colin Howard, it is clear and apparent that where any term has been used in the Act which per se seems to be without jurisdiction but can be read down in order to make it constitutionally valid by separating and excluding the part which is invalid or by interpreting the word in such a fashion in order to make it constitutionally valid and within jurisdiction of the legislature which passed the said enactment by reading down the provisions of the Act. This, however, does not under any circumstances mean that where the plain and literal meaning that follows from a bare reading of the provisions of the Act, Rule or Regulation that it confers arbitrary, uncanalised, unbridled, unrestricted power to terminate the services of a permanent employee without recording any reasons for the same and without adhering to the principles of natural justice and equality before the law as envisaged in Art. 14 of the Constitution, cannot be read down to save the said provision from constitutional invalidity by bringing or adding words in the said legislation such as saying that it implies that reasons for the order of termination have to be recorded." 30. Reliance has also been placed on a decision of a Full Bench of this Court in the case of Braj Kishore Singh and others V/s. The State of Bihar and others ( 1997 (1) PLJR 509 ) and my attention has been drawn to paragraph 25 of the judgment which reads as follows : "In the present case also, in view of the inherent unworkability of the impugned provisions regarding prior approval of the State Government the provisions can be read down in the manner indicated above. The soul of the provisions is not violated and the purpose is also achieved. The purpose in making these provisions is to pre-empt illegal and uncalled for appointments. Large scale illegal appointments without availability of posts have been made in different establishments/ organisations in the State in recent time and the legislature thought it appropriate to intervene and make the provisions which would deter the College/University authorities from making illegal appointments because, more often than not, it is the State which has to bear the financial burden of the appointments. The purpose underlying the provisions, therefore, has not only to be lauded but also achieved. If Section 35 is interpreted in the manner indicated above, not only the provisions would be substantially complied with but the purpose also would be fulfilled." 31. The theory of reading down the provision in a statute to make it constitutionally valid and to make it workable is a mode well recognised in law. But the question herein is as to why it be read down, Having found that providing different scales of pay for trained and untrained teachers does not offend any constitutional provision and cannot be said to unworkable and hence the provision cannot be read down. In my opinion, it is not permissible to read down a provision where the language is plain, clear and unambiguous. Hence I overrule the submission of the learned counsel. 32. Learned counsel for the petitioners submits that trained teachers and untrained teachers constituted a class and granting them different scales of pay is creating a class within a class and the same is not permissible as it impinges the petitioners right guaranteed under Articles 14 and 16 of the Constitution of India. 32. Learned counsel for the petitioners submits that trained teachers and untrained teachers constituted a class and granting them different scales of pay is creating a class within a class and the same is not permissible as it impinges the petitioners right guaranteed under Articles 14 and 16 of the Constitution of India. Reference in this connection has been made to a decision of the Supreme Court in the case of State of Jammu and Kashmir V/s. Shri Triloki Nath Khosa and others ( 1974 (1) SCC 19 ) and my attention has been drawn to the following passage of the judgment which reads as follows : "Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Government had prescribed that only those degree holders who had secured over 70 per cent marks could become Chief Engineers and those with 60 per cent alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it." 33. It is true that the class within class is frowned on account of the equality clause under Articles 14 and 16 of the Constitution of India but the same permits reasonable classification. To pass the test of permissible qualification one has to see, as to whether the classification is founded on an intelligible differentia which distinguishes persons grouped together from other left out of the group and the difference must have a rational relation to the object sought lobe achieved. Here trained and untrained teachers have been grouped separately. The need of the teachers being trained does not need much emphasis. Thus in my opinion the classification is based on rationality and hence the grievance that by providing two different scales for trained and untrained teachers class within class has been constituted is absolutely unfounded. 34. Learned counsel for the petitioners submits that providing different scale of pay on the basis of qualification is illegal. I do not have the slightest hesitation in rejecting this submission of the learned counsel for the petitioners. 34. Learned counsel for the petitioners submits that providing different scale of pay on the basis of qualification is illegal. I do not have the slightest hesitation in rejecting this submission of the learned counsel for the petitioners. Here the training which has made distinction is in respect of teachers, In my opinion a qualification which is relevant and acquisition whereof is expected to enhance the potential of the hofder certainly can form the basis for providing a higher scale of pay. 35. Learned counsel then contends that the qualification has no relevance so far as teaching of primary school students are concerned and as such the distinction made is illegal. This submission has been noted only to put the record straight. As observed earlier, teaching the students of primary school requires high degree of patience and expertise. Training sharpens the ability of teachers and in many of the cases on account of the training they acquire a level making them competent enough to impart education. 36. Learned counsel for the petitioners submits that untrained teachers and trained teachers are performing the same work and as such they are to be given the same scale of pay. They submit that the doctrine of equal pay for equal work as envisaged in the directive principles of the State Policy under Article 39(d) of the Constitution of India is clearly attracted. Equal pay for equal work is not an abstract theory and in case the nature of work performed by trained teachers is different and reliability higher, I am of the opinion that it could be a valid ground for providing different pay sales. The quality of work of a trained teacher is certainly expected to be better than untrained teacher and that can be a ground to provide the two classes different scales of pay. Reference in this connection can be made to a decision of the Supreme Court in the case of State Bank of India and another V/s. M.R. Ganesh Babu and others (2002 AIR SCW 1881) in which it has been observed as follows : "The principle of equal pay for equal work has been considered and applied in many reported decisions of this Court. The principle has been adequately explained and crystallised and sufficiently reiterated in a catena of decisions of this Court. The principle has been adequately explained and crystallised and sufficiently reiterated in a catena of decisions of this Court. It is well settled that equal pay must depend upon the nature of work done. It cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in the fixing the scales of pay and other conditions of service. So long as such value judgment is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. The principle is not always easy to apply as there are inherent difficulties in comparing and evaluating the work done by different persons in different organizations, or even in the same organization. Differentiation in pay scales of persons holding same posts and performing similar work on the basis of difference in the degree of responsibility, reliability and confidentiality would be a valid differentiation. The judgment of administrative authorities concerning the responsibilities which attach to the post, and the degree of reliability expected of an incumbent, would be a value judgment of the authorities concerned which, if arrived at bona fide, reasonably and rationally, was not open to interference by the Court. 37. Reference can also be made to a decision of the Supreme Court in the case of Sahib Ram V/s. State of Haryana and others (1995 (Supp.) (1) SCC 18) in which it has been held as follows : "Admittedly the appellant does not possess the required educational qualifications. Under the circumstances the appellant would not be entitled to the relaxation. The Principal erred in granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on the revised scale. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault Under the circumstances the amount paid till date may not be recovered from the appellant. However, it is not on account of any misrepresentation made by the appellant that the benefit of the higher pay scale was given to him but by wrong construction made by the Principal for which the appellant cannot be held to be at fault Under the circumstances the amount paid till date may not be recovered from the appellant. The principle of equal pay for equal work would not apply to the scales prescribed by the University Grants Commission. The appeal is allowed partly without any order as to costs." 38. It is relevant here to state that by Circular dated 25.6.99 all untrained teachers, who had completed one year in service training by 1.1.96 but were unable to pass the examination, because no examination was held/no result was published were provisionally allowed the higher Matric trained scale of Rs. 4500-7000 subject to the condition of passing the examination. Certain individual teachers who were either Intermediate or Graduate or even Post Graduate and had not completed training and thus not covered by the aforesaid Circular filed CWJC No. 7103 of 1999 (Vinoy Kumar Roy and others V/s. State of Bihar and Others) and the said circular was set aside and the matter remitted back to the State Government for reconsideration. After the said order the Finance Department issued order dated 16.1.2001 by which the recommendations of the Fitment Committee as adopted in the Resolution dated 8.2.99 were restored. Learned counsel for the petitioners submits that the basis of the impugned order is the order of this Court in the case of Binoy Kumar (supra) and the same has to be understood in the context it was rendered. It is emphasised that complaint made to this Court in the said case was different pay scale between the teachers who have undergone in-service training and teachers who were not sent for training and as such the State Government misused the order of this Court to grant different scales of pay to untrained teachers. I do not find any substance in this submission of the learned counsel. The Fitment Committee in its report had emphasised the role of training to a teacher. Taking this into account, it had recommended a lower scale of pay for untrained teacher. I do not find any substance in this submission of the learned counsel. The Fitment Committee in its report had emphasised the role of training to a teacher. Taking this into account, it had recommended a lower scale of pay for untrained teacher. The State Government took decision to grant Matric trained scale to such teachers who have undergone training but due to non-holding of the examination did not pass the same. Same did not find favour with this Court and ultimately the State Government classified untrained teachers and matric trained teachers in two separate categories, which cannot be said to be illegal. 39. Learned counsel for the petitioners for such of the teachers who had undergone training but not appeared in the examination on account of the failure of the Bihar School Examination Board to conduct examination contend that such teachers shall be deemed to be trained and as such entitled for the matric trained scale. It is not disputed that such of the candidates have not got the certificate for passing the examination for whatever reason. In any view of the matter, learned counsel contend that such petitioners cannot be allowed to suffer on account of failure of the Bihar School Examination Board to hold the examination. Reliance has been placed on the decision of the Supreme Court in the case of State of Maharashtra V/s. Jagannath Achyut Karandikar ( AIR 1989 S.C. 1133 ) and my attention has been drawn to following portion of paragraph 10 of the judgment, which reads as follows : "It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year. That does not also appear to be the intent or purpose of the 1962 Rules." 40. I do not find any substance in this submission of the learned counsel for the petitioners. True it is that some of the teachers have undergone training but whether they have taken training properly can only be assessed if they pass the examination. Mere attending the classes or for that matter other activities relating to training itself will not cerfity that they learnt what they had been taught during the period of training and to test that examination is held. Mere attending the classes or for that matter other activities relating to training itself will not cerfity that they learnt what they had been taught during the period of training and to test that examination is held. In the absence of the examination all the petitioners cannot be said to have obtained the training certificate and in absence thereof they are not entitled for the Martic trained scale only on the ground that they have undergone training. Further failure, if any, on part of the Bihar School Examination Board to hold the examination cannot be said to be failure of the State Government. Board is statutory Body and it cannot be equated with the Government. In the case of Jagannath Achyut Karandikar (supra), the State Government itself in order to overcome the difficulty gave the benefit, which is not the case here. Hence this submission has no force and the authority relied on is clearly distinguishable. 41. Learned counsel representing such of the petitioners who are graduate contend that the decision of the Fitment Appellate Committee is binding on the State Government and Fitment Appellate Committee having recommended for grant of matric trained scale to graduate teachers, the State is bound by the same. It is emphasised that the Fitment Appellate Committee has found that equating the Graduate Untrained Teachers with Matric Untrained Teachers is not entirely fair and the mental horizons and conceptual abilities of a graduate is far superior to that of a matriculate. It is emphasised that conclusion of the Fitment Appellate Committee as preceded by an agreement between the employees Union and the State Government and paragraph 1 of the said agreement had clearly stipulated that the recommendations of the Fitment Appellate Committee shall be binding on both the parties. 42. Mr. R.K. Datta however submits that the Fitment Appellate Committee was to go into the question in regard to the illegally committed by the Fitment Committee in respect of its reference or the decision taken by the State Government in regard thereto. He points out that the Fitment Committee was constituted to consider the demand of the employees for grant of pay equivalent to Central Government employees. The Fitment Committee found that in the Centre there were no untrained teachers and on that basis untrained teachers were kept at lower level. Mr. He points out that the Fitment Committee was constituted to consider the demand of the employees for grant of pay equivalent to Central Government employees. The Fitment Committee found that in the Centre there were no untrained teachers and on that basis untrained teachers were kept at lower level. Mr. Dutta highlights that the recommendation of such a committee is after all a recommendation and the State Government is not bound by the same. 43. Having appreciated the rival submission I find substance in the submission of Mr. Datta. It is not disputed that in the Centre there is no untrained teachers and as such untrained teachers of the State cannot be considered equivalent to the trained teachers in the Central Government. The demand of the employees of the State Government was for grant of Central pay scale, which was to be considered by the Fitment Committee. 44. The Fitment Committee having found absence of untrained teachers in the Centre recommended for a lower scale of pay for untrained teachers. Thus the untrained teachers cannot make a grievance that they have not been given the Central pay scale. In the absence of any scale of pay of untrained teachers in the Centre the Fitment Committee suggested for a lower scale of pay. The need for training to untrained teachers does not need much emphasis. Fitment Appellate Committee was required to go into the question of any error in regard to the recommendations of Fitment Committee in relation to the terms of reference or the error in the decision of the State Government. Fitment Committee was to consider the demand of the employees of the State Government for grant of Central pay scale. In that view of the matter, the recommendation of the Fitment Committee cannot be said to be illegal in terms of the reference so also the decision of the State Government. In any view of the matter, I am of the opinion that the recommendation of such committee is nothing but a recommendation and the State Government is not bound by the same. 45. However, I must add a word of caution. Generally speaking the recommendation is after all a recommendation and the State Government may not be bound by that. In any view of the matter, I am of the opinion that the recommendation of such committee is nothing but a recommendation and the State Government is not bound by the same. 45. However, I must add a word of caution. Generally speaking the recommendation is after all a recommendation and the State Government may not be bound by that. However, in a case in which for any unjustifiable reason the State Government does not accept such recommendations, its action would be arbitrary and the power of judicial review can be exercised to set it right. In the present case grant of a lower scale of pay of untrained teachers is based on sound reason and thus I am of the opinion that a writ of mandamus cannot be issued to implement the recommendations of the Fitment Appellate Committee and the State is not bound by the same. 46. Learned counsel for the petitioners submits that all the untrained teachers expected that they should be sent for training and thereafter given the Matric Trained Scale but they are deprived of the same either on the ground that they have not passed the examination and many of them have not even sent for training. This, according to the learned counsel, is in the teeth of the doctrine of legitimate expectation. Reliance has been placed on a decision of the Supreme Court in the case of Punjab Communications Ltd. V/s. Union of India and others (1999)4 Supreme Court Cases 727) and my attention has drawn to paragraph 27 of the judgment which reads as follows :- "The basic principles in this branch relating to "legitimate expectation" were enunciated by Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service at pp. 408-409. 408-409. It was observed in that case that for a legitimate expectation to arise, the decisions of the administrative authority must affect the person by depriving him of some benefit or advantage which either (i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; (ii) he has received assurance from the decision-maker that they will not be withdrawn without giving him first an opportunity of advancing reasons for contending that they should not be withdrawn. The procedural part of it related to a representation that a hearing or other appropriate procedure will be afforded before the decision is made. The substantive part of the principle is that if a representation is made that a benefit of a substantive nature will be granted or if the person is already in receipt of the benefit that it will be continued and not be substantially varied, then the same could be enforced. In the above case, Lord Fraser accepted that the civil servants had a legitimate expectation that they would be consulted before their trade union membership was withdrawn because prior consultation in the past was the standard practice whenever conditions of service were significantly altered. Lord Diploc went a little further when he said that they had a legitimate expectation that they would continue to enjoy the benefits of the trade union membership. The interest in regard to which a legitimate expectation could be had must be one which was protectable. An expectation could be based on an express promise or representation or by established past action or settled conduct. The representation must be clear and unambiguous. It could be a representation to the individual or generally to a class of persons." 47. Mr. Datta however submits that the principle of legitimate expectation is not remotely attracted in the present case. Untrained teachers, before their appointment, were informed that they shall be appointed on a lower scale of pay. In fact they were appointed as such. It could be a representation to the individual or generally to a class of persons." 47. Mr. Datta however submits that the principle of legitimate expectation is not remotely attracted in the present case. Untrained teachers, before their appointment, were informed that they shall be appointed on a lower scale of pay. In fact they were appointed as such. Thereafter for a brief period they were given the matric trained scale but when the demand was made to grant them the Central pay scale it was found that in the Centre there is no untrained teacher and accordingly lower scale of pay was given to them. In my opinion, expectation by such untrained teachers to get the scale of pay equivalent to trained teachers cannot be said to be legitimate and hence the relief sought for on the ground of principle of legitimate expectation is absolutely misconceived. 48. As stated earlier some of the teachers have undergone training but the Bihar School Examination Board has not held the examination. Grievance of some of the petitioners is that although they have appeared in the examination held by the Bihar School Examination Board in year 1994 but the result has not been declared. Such of the teachers pray for issuance of a writ in the nature of mandamus commanding the Bihar School Examination Board to hold the examination and publish the result. It is their grievance that the direction of the Supreme Court in the case of Ram Vijoy Kumar (supra) has not been carried out and they further contend that it is a fit case in which the State Government be directed to take steps for getting the teachers trained by directing the Bihar School Examination Board to hold the examination. Reliance has been placed on a decision of this Court in the case of Smt. Kumari Kalpana Rani V/s. State of Bihar and Ors. ( 2002(4) PLJR 385 ) and my attention has been drawn to paragraphs 8 and 10 of the judgment, which reads as follows :- "8. Pursuant to the observations made by the Supreme Court, as referred to above, the State Government arranged for training of the untrained teachers and training was imparted to them including the petitioner and the training course, however, was completed on 10.5.1999, but till date examination of this training course has not been held." "10. Pursuant to the observations made by the Supreme Court, as referred to above, the State Government arranged for training of the untrained teachers and training was imparted to them including the petitioner and the training course, however, was completed on 10.5.1999, but till date examination of this training course has not been held." "10. Considering the facts and circumstances of the case and in view of the observations made above, respondent no.1, the Secretary, Primary Education, Government of Bihar, Patna, is directed to hold the examination of the training course, which was completed on 10.5.1999, as referred to in the writ application within a period of six months from today." 49. Learned counsel appearing on behalf of the Bihar School Examination Board submits that with a view to achieve planned and co-ordinated development of the teachers education system and for regulating and proper maintenance of norms and standard in the teachers education system, the National Council For Teacher Education Act, 1993 (for short the Act) has been enacted and all the teachers undergoing training have not obtained the training from an institution recognised by the Regional Committee for conducting a course for training and as such the Bihar School Examination Board is prohibited to hold the examination. They point out that such of the institutions which are offering course or training in teachers education are required to obtain affiliation by the Regional Committee under section 14 of the said Act. They point out that those institutions from which such of the teachers have taken training have not been granted affiliation or permission by the Regional Committee and as such in view of Section 16 of the Act, the Bihar School Examination Board is prohibited to hold the examination. They also point out that even if the examination is held and certificate granted, qualification obtained shall not be treated as valid qualification for the purpose of employment under the Central Government, any State Government or University or any college or educational body aided by the Central Government or any State Government. It is common ground that such teachers have taken training from an institution not affiliated by the Regional Committee or even granted permission by the such Committee. This requires examination of Sections 16 and 17 of the Act, same read as follows :- "16. It is common ground that such teachers have taken training from an institution not affiliated by the Regional Committee or even granted permission by the such Committee. This requires examination of Sections 16 and 17 of the Act, same read as follows :- "16. Affiliating body to grant affiliation after recognition or permission by the Council.Notwithstanding anything contained in any other law for the time being in force, no examining body shall, on or after the appointed day,- (a) grant affiliation, whether provisional or otherwise, to any institution, or (b) hold examination, whether provisional or otherwise, for a course or training conducted by a recognised institution. Unless the institution concerned has obtained recognition from the Regional Committee concerned, under section 14 or permission for a course or training under section 15. "17. Contravention of provisions of the Act and consequences thereof. XX XX XX XX XX XX XX XX (4) if an institution offers any course or training in teacher education after the coming into force of the order withdrawing recognition under sub-section (1), or where an institution offering a course or training in teacher education immediately before the appointed day fails or neglects to obtain recognition or permission under this Act, the qualification in teacher education obtained pursuant to such course or training or after undertaking a course or training in such institution, shall not be treated as a valid qualification for purposes of employment under the Central Government, any State Government or University, or in any school, college or other educational body aided by the Central Government or any State Government." (Underlining mine) 50 From a plain reading of section 16 of the Act it is evident that the Examining Body after the appointed day is prohibited from holding examination for course or training conducted by an institution unless the institution concerned has obtained recognition from the Regional Committee concerned under Section 14 or permission for a course or training under section 15 of the Act. It is common ground that the Central Government in terms of section 3 of the Act had already established the Council. Further it is not disputed that the institution in which some of the teachers have taken training have not obtained recognition from Regional Committee under Section 14 of the Act or permission for a course or training under section 15 of the Act. Further it is not disputed that the institution in which some of the teachers have taken training have not obtained recognition from Regional Committee under Section 14 of the Act or permission for a course or training under section 15 of the Act. In view of prohibition put by section 16 of the Act on the Bihar School Examination Board, the mandamus sought for cannot be granted. In my opinion, in case the mandamus sought for is granted same shall further complicate the matter as section 17(4) of the Act makes it abundantly clear that qualification for teachers education obtained pursuant to such course or training in such institution shall not be treated as valid qualification unless the same is recognised by the Regional Committee. It is well settled that this Court shall not issue direction to any authority which shall be in breach of law. In my opinion, any direction in breach of law shall be destructive to the rule of law itself. 51. It is relevant here to state that impugned decisions direct for recovery of the excess amount paid to the petitioners. While assailing the said decision, learned counsel for the petitioners submit that excess payment was made to them without any fraud or misrepresentation and as such the decision to recover the excess amount is absolutely illegal. Reliance has been placed on the decision of the Supreme Court in the case of Mafatlal Industries Ltd. and others V/s. Union of India and others (1997) 5 SCC 536 ) and my attention has been drawn to paragraph 297 of the judgment, which reads as follows :- "The law of Restitution if founded upon the principle of "unjust" enrichment". As stated by the learned authors, Lord Goff of Chieveley and Gareth Jones in the book The Law of Restitution (3rd Edn.), 1986. "It presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiffs expense; and thirdly, that it would be unjust to allow him to retain the benefit. These three subordinate principles are closely interrelated." 52. True it is that recovery of salary paid to an individual employee in excess without misrepresentation may not be allowed to be recovered but distinction has to be made between individual cases and group of employees. These three subordinate principles are closely interrelated." 52. True it is that recovery of salary paid to an individual employee in excess without misrepresentation may not be allowed to be recovered but distinction has to be made between individual cases and group of employees. Here individuals have not been chosen but a group of employees have been asked to refund the excess salary paid to them. In such a situation, I am of the opinion that the excess payment made even without misrepresentation and fraud can be recovered. In view of the decision of a Division Bench of this Court in the case Vijay Kumar Singh and others V/s. State of Bihar [ 2002 (2) BBCJ 569 : 2002(3) PLJR 808 ], this point need not detain me further. In the said case in paragraphs 29 and 33 of the judgment it has been held as follows :- "29. The question in the present case is as to whether the direction for recovery of excess payment made to the employees is valid or not. No doubt, there is no fraud or misrepresentation on the part of the appellants, but the fact remains that this is not a case of only few teachers having been given the benefit. This is a case of interpretation of policy involving several crores of rupees. Large number of assistant teachers of the Nationalised schools have been wrongly given benefit or additional increment though they are not entitled as admittedly they were not carrying the duties and responsibilities of greater importance than those attached to the post held by them. The huge amount of public money of a poor State has been paid to them by wrong understanding of the provision of law by the Education Department as well as by the Drawing and Disbursing Officer of the School. When there is a question of involvement of public interest in a case like this, balance has to be struck off between the private interest and public interest. The balance lies in favour of public interest. The sympathy and benevolence has no doubt some role to play while exercising the powers under Article 226 of the Constitution of India, but discretion cannot be exercised at the cost of public interest. "33. The balance lies in favour of public interest. The sympathy and benevolence has no doubt some role to play while exercising the powers under Article 226 of the Constitution of India, but discretion cannot be exercised at the cost of public interest. "33. Taking into consideration the totality of the circumstances even on the strength of the above discussions, we are unable to hold that no order should be made for the recovery of the excess amount. We would, however, require the State Government to recover the amount in easy and proper instalments. The total amount paid to the employees may be recovered without interest in a least 50 instalments provided such an employee has the tenure of 50 months or more. If an employee does not have a tenure of 50 months or more then the instalments may be reduced to a reasonable period so that such an employee does not suffer unnecessary brunt of a cut in the payment/salary etc." 53. Although I have overruled all the submissions made on behalf of the petitioners, still I am disturbed by the facts of the present case. Untrained teachers were appointed and the rule provided for sending them for training. Some of the teachers were sent for training but they were sent for training in institutions which are not recognised in terms of the Act. I expect, the State Government to tighten its belt, device ways and means for sending untrained teachers for training in institutions legally established and then to request the Bihar School Examination Board to hold the examination. Training of teachers shall have bearing on their efficiency. Consequently it shall have bearing on the quality of children-education. Better quality of education to the children is the need of the hour and I am sure the State Government shall give a serious thought about it. 54. In the result, I do not find any merit in the applications and they are dismissed accordingly with the observations made above. No costs.