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2009 DIGILAW 325 (JHR)

State of Jharkhand v. Kali Pada Dutta

2009-03-03

D.K.SINHA, GYAN SUDHA MISRA

body2009
JUDGMENT AII these appeals have been preferred by the State of Jharkhand through the Human Resources Development Department against the order dated 20.1.2003 passed by the learned Single Judge in three writ petitions bearing W.P.(S) No. 2395 of 2001 (Kali Pad a Dutta & Others vs. The State of Jharkhand & Others), W.P.(S) No. 2362 of 2001 (Basant Saha vs. The State of Jharkhand & Others) and W.P.(S) No. 3995 of 2001 (Anant Kumar & Others vs. The State of Jharkhand and Ors.), by which the learned Single Judge was pleased to allow the writ petitions and was pleased to set aside the order by which time bound promotion granted to the petitioners/respondents herein had been withdrawn and consequently an order was passed to recover the salary which according to the appellant-State was an excess withdrawal on the part of the respondents-teachers by way of the scale allowed to them on account of the order dated 9.9.1999 by which the respondents' were granted first time bound promotion with effect from 21.6.1992. 2. In order to appreciate the controversy giving rise to these appeals, it may be relevant to state that the respondents had been appointed as Assistant teachers in the year 1982 with effect from different dates indicated in the order of their appointments which were issued in the year 1.982. Admittedly, the respondents were initially untrained teachers and were getting untrained, scale but in the year 1989 vide Memo Nos. 6021 and 6022 dated 18.12.1989, Fourth Pay Revision was adopted by the Government and benefits of revised scale of pay was allowed in favour of the respondents/untrained teachers also with effect from 1.1.1986. According. to the case of the petitioners respondents herein, hey were granted the scale of trained teachers with effect from 1.1.1986. in terms of the Finance Department .Resolution referred to hereinbefore and in terms of Clause 13 thereof, they were granted the benefits of the revised scale of pay which was revised to Rs. 975-1,540/- and they were placed in the said scale with effect from 1 .1.1986. They continued as Assistant Teachers in an untrained capacity until 1993-1994 when the respondents/untrained teachers/Assistant Teachers were sent for training which was completed in the year 1994. According to the case of the respondents/untrained teachers, although they were placed in the revised scale of untrained teachers in the scale of Rs. They continued as Assistant Teachers in an untrained capacity until 1993-1994 when the respondents/untrained teachers/Assistant Teachers were sent for training which was completed in the year 1994. According to the case of the respondents/untrained teachers, although they were placed in the revised scale of untrained teachers in the scale of Rs. 975-1,540/-, they were never ever granted any promotion and when they completed the training in the year 1994, the District Education Establishment Committee took a decision on 28.5.1994 for grant of first time bound promotion to the respondents who had completed ten years of service in the pay scale of Rs. 1,200-1,800/-. Consequently, by order dated 26.6.1995, first time bound promotion was allowed to the respondents with effect from 1992 in the pay scale of Rs. 1,200-1,800/- and accordingly their pay scale was fixed. Subsequently, the Director again issued a letter dated 7.6.1995 indicating therein that graduate untrained teachers shall be given the revised pay scale of Rs. 1,200-2,040/-. Accordingly, the pay was fixed in the revised pay scale of Rs. 1,2002,040/-. The respondents thereafter continued to avail this scale from 1995 onwards plus the arrears of salary with effect from 1992. 3. The appellant State, however, suddenly issued an order on 26.9.2000 as contained in Annexure-4 to the writ petition indicating that the respondent-teachers, over a period of time, had acquired the qualification of a trained teacher (Matric Trained) and were entitled to the basic salary of a trained teacher in the scale of Rs. 1,240-2,040/-, but as they illegally and wrongly, contrary to the Circular No. 602 dated 10.12.1989 of the Finance Department, availed the promotional scale of Matric Untrained Teacher, which was Rs. 1,400-2,300/-, the same was ordered to be cancelled. This office order dated 26.9.2000, vide Annexure-4, further ordered that as the respondent-teachers had availed a higher scale of Matric Untrained Teacher although they were already trained teachers and were entitled to avail the scale of Rs. 1,240-2,040/-, they were liable to refund which they had wrongly availed by receiving the promotional scale of untrained teacher. It was, therefore, ordered that within a period of 45 days the excess amount which had been received by them by availing the promotional scale of Matric Untrained Teacher should be recovered. The 'order further indicated that the revised scale of Matric Untrained/Trained would be revised to the scale of Rs. 3,050-4,590/- for the Matric Untrained and Rs. It was, therefore, ordered that within a period of 45 days the excess amount which had been received by them by availing the promotional scale of Matric Untrained Teacher should be recovered. The 'order further indicated that the revised scale of Matric Untrained/Trained would be revised to the scale of Rs. 3,050-4,590/- for the Matric Untrained and Rs. 4,500-7,000/- for the Matric Trained Teacher. 4. The respondent-teachers, who were initially untrained and were placed in the scale of Matric Untrained Teacher in the year 1989 and were receiving the scale of Rs. 975-1 ,540/- and were entitled to the scale of Matric Trained Teacher in the year 1994, after having acquired the Teachers' Training, were entitled to be placed in the appropriate scale of Matric Trained Teacher. The respondent-teachers, however, in spite of having acquired the status of Matric Trained Teacher in the year 1994, were not granted the appropriate scale of the Matric Trained Teacher instead they availed the promotional scale of Matric Untrained Teacher, which was Rs. 1,4002,300/- which was later struck down as illegal receipt on the part of the respondent-teachers on the plea that as they were already Matric Trained Teachers and were entitled to be placed in the scale of Rs. 1,240-2,040/- which was promotional scale of Matric Untrained Teacher, it was ordered to be cancelled by office order dated 26.9.2000, as indicated hereinbefore. 5. A large number of affected teachers including the respondents herein filed a writ petition raising a common cause before the learned Single Judge bearing C.W.J.C. No. 4316 of 2000, which was allowed and the order cancelling the promotional scale to the respondent-teachers was ordered to remain effective. 6. The appellant-State, being aggrieved of the aforesaid order, has preferred appeal, in support of which J.C. to G.A. submitted that the order granting the promotional scale of Matric Untrained Teacher to the respondents, which was availed by them, was rightly ordered to be cancelled as the respondents could not have been permitted to avail time bound promotion, in the year 1995 without completing a period of 12 years, though they have already availed the promotional scale of Matric Untrained Teacher in the year 1989 with effect from 1.1.1986. According to the stand of the appellant-State, the respondents, therefore, could not have been allowed second promotion in the year 1995 without completing 12 years of service; meaning thereby that 'if they had availed the promotional scale of Matric Untrained Teacher in the year 1989 with effect from. 1.1.1986, then the next promotion could have been made available to them only after completion of 12 years, which obviously would be after 1999. On this premise, the counsel for the appellant-State submitted that the order dated 26.9.2000, by which the promotional scale of Matric Untrained Teacher granted to the respondents in the year 1995, was rightly withdrawn and the order of recovery was made. 7. The respondent-teachers were represented by a group of lawyers, who appeared individually, but the contention raised on their behalf is one and the same and it was submitted that in the first instance, the respondent-teachers although were allowed the revised scale of Matric Untrained Teacher in the year 1989 with effect from 1986, the same which was granted to them was not that of a trained teacher, but that was the revised scale of Matric Untrained Teacher and the same was Rs. 975-1,540/-. It was further submitted that they were availing this scale ever since 1989 with effect from 1986 and continued to avail the same till the year 1995, when the promotional scale of Matric Untrained Teacher was granted to them in the scale 6f Rs. 1,400-2,300/-. It was, therefore, submitted that for the first time, the scale of Matric Untrained Teacher was granted to them and that ought to be treated as the first time bound promotion granted in the year 1989, when the scale of Matric Untrained Teacher was revised and the same could not have been treated as promotional scale but merely the revised scale. In so far as the promotional scale is concerned, the same was made available to them for the first time in the year 1995 with effect from 1992. Therefore, there was no error or illegality on the part of the respondent-teachers to receive the promotional scale of Matric Untrained Teacher. 8. In so far as the promotional scale is concerned, the same was made available to them for the first time in the year 1995 with effect from 1992. Therefore, there was no error or illegality on the part of the respondent-teachers to receive the promotional scale of Matric Untrained Teacher. 8. The submissions and counter-submissions of the counsel for the parties were meticulously scrutinized by this Court in the light of the impugned order of cancellation of the promotional scale availed by the respondent-teachers and the different scales that were availed by the trained teachers as also the scales available to the untrained teachers including the respondents. 9. On a careful scrutiny of the materials on record, it could be noticed after a hard labour that while the appellant-State is correct in cancelling the time bound promotional 'scale granted to the respondent-teachers which was applicable in case of a Matric Untrained Teacher, the respondents nevertheless are also partly correct in contending that granting them a lower scale in the category of Untrained Teacher was totally unjustified. To make the position crystal clear, it may be explained by taking note of the fact that the respondent-teachers although initially were Matric Untrained Teacher and were also availing the scale of Matric Untrained Teacher, yet subsequently they had acquired the status of Matric Trained Teacher in the year 1994 and in that capacity, they were entitled to the scale of Matric Trained Teacher. Curiously the respondents although had completed the Teachers' Training in the year 1994 and were also upgraded as Matric Trained Teacher, they were not granted the scale of Matric Trained Teacher and they continued to discharge duties of a Matric Untrained Teacher with the scale which was made available to them way back in the year 1989 and although they had acquired the status of Matric Trained Teacher, they •did not receive the salary of Matric Trained Teacher. 10. The entire situation thus seems to have given rise to a confusion which has been confounded as the respondents, on the one hand, had acquired the status of Matric Trained Teacher, yet they did not receive the salary of the Matric Trained Teacher and on the other hand, they were made available the promotional scale of Matric Untrained Teacher, which was Rs. 1,400-2,300/-. 1,400-2,300/-. The appellant-State also seems to have misunderstood the whole position that they themselves have allowed the promotional scale of Matric Untrained Teacher to the respondents, although they were entitled to the scale to Matric Trained Teacher. So on the one hand, the appellant-State issued an order on 26.9.2000 cancelling the order of promotional scale to the respondents and on the other hand, the respondent-teachers, having acquired the status of Matric Trained Teacher, were held entitled to be placed in the scale of Matric Trained Teacher in the basic scale of Rs. 1,240-2,040/-. This obviously gave rise to an anomalous situation as on the one hand the respondent-teachers had acquired the status of Matric Trained Teacher in the year 1994 and on the other hand, according to the appellant-State, they were entitled to be placed in the basic scale of Rs. 1,240-2,040/- which obviously is difficult to digest for the respondents, who, having acquired the status of Matric Trained Teacher, were directed to receive a lower salary than that of Matric Untrained Teacher; meaning thereby that if they were treated as Matric Trained Teachers. they had to be placed in the appropriate scale of Matric Trained Teacher which had to be higher than that of Matric Untrained Teacher. While the appellant-State may be correct in issuing an order that the respondents were not entitled to the promotional scale of Matric Untrained Teacher, yet the appellant-State is incorrect in stating that they were to be placed only in the basic scale of Matric Trained Teacher. Perhaps for this reason in the order under challenge, the appellant-State also tried to .meet with this anomaly and has recorded that the respondent-teachers who were trained teachers would be entitled to the revised scale of trained teachers as and when the same is revised. But in that process, the appellant-State completely overlooked and missed that even in the revised scale, they could not be permitted to receive lower salary than that of trained teacher. This must have been the reason for the appellant State to grant them promotional scale of Matric Untrained Teacher which also cannot be the salary as the respondents, having acquired the status of Matric Trained Teacher, could not have been permitted to avail a lesser salary of Matric Untrained Teacher. 11. This must have been the reason for the appellant State to grant them promotional scale of Matric Untrained Teacher which also cannot be the salary as the respondents, having acquired the status of Matric Trained Teacher, could not have been permitted to avail a lesser salary of Matric Untrained Teacher. 11. To strike a balance between the anomalies which had been created by the appellant-State, we are of the view that the respondent-Teachers, having acquired the status of Trained Teachers in the year 1994, should not have been allowed to be placed in the basic scale of a trained teacher, which was Rs. 1,240-2,040/-, but they were entitled to be placed in the higher scale of a trained teacher, which was Rs. 1,400-2,300/- by way of promotional scale of Matric Untrained Teacher, which they could not have been legally entitled to receive; nevertheless the respondent-teachers were entitled to an appropriate scale of Matric Trained Teacher, which could not have been less than the scale of Matric Untrained Teacher, as already recorded hereinbefore. 12. The end result of the entire exercise is that the respondent-teachers would have been entitled to Rs. 300/- more, had they been appropriately placed in the scale of Matric Trained Teacher, as it would be noticed that in spite of the respondents, having acquired the status .of Matric Trained Teacher and were although placed in the basic salary. of Matric Trained Teacher, in reality their pay was less than the scale of Matric Untrained Teacher. The respondents, therefore, in our view, although were wrongly granted the promotional scale of Matric Untrained Teacher, which was Rs. 1,400-2,300/-, they were entitled to the scale of Matric Trained Teacher, which was Rs. 1,420-2,600/- and for that reason, they would have been entitled to Rs. 300/- more tl.1an what they got as the promotional scale of Matric Untrained Teacher. This see-saw battle of Matric Trained and Untrained Teachers' scale, thus, had allowed to lead to the conclusion that the respondents in the process would be entitled to Rs. 1,420-2,600/- and for that reason, they would have been entitled to Rs. 300/- more tl.1an what they got as the promotional scale of Matric Untrained Teacher. This see-saw battle of Matric Trained and Untrained Teachers' scale, thus, had allowed to lead to the conclusion that the respondents in the process would be entitled to Rs. 300/- more from the year 1994 as they had acquired the status of the trained teacher and were entitled to an appropriate scale of trained teacher, but we would not permit this increase at this belated stage for the simple reason that the respondents themselves appear to have created this situation by receiving the promotional scale of Matric Untrained Teacher and had they pointed out this anomaly to the concerned authority, they would not have been entitled to receive the promotional scale of Matric Untrained Teacher, which was higher than their own salary, which situation, perhaps, could have been remedied at the appropriate time. They having not pointed out this anomaly before the concerned authority, we cannot permit the respondent-teachers to claim Rs. 300/- more now at this belated stage, to which they were entitled. 13. It is, thus, obvious that issuance of the order to recover the amount from the salary of the respondent-teachers, do not arise at all as they are clearly entitled to be placed in the appropriate scale of Matric Trained Teacher, which would be Rs. 1,400-2,600/-. Hence, the appellant State authorities are directed to examine this anomaly and place them in the appropriate scale of Matric Trained Teacher which would be Rs. 1,400-2,600/- as per the Bihar Taken Over Elementary School Teachers' Promotion Rules, 1993. as we have noticed that the said scale is the scale which would not be less than the promotional scale• of Matric Untrained Teacher. 14. Even at the risk of repetition, we record that the respondent-teachers although were not entitled to the promotional scale of Matric Untrained Teacher and the order of the appellant-State in cancelling the same is correct, the respondent-teachers, by virtue of having acquired the status of Matric Trained Teacher, were entitled to be placed at the appropriate scale of Matric Trained Teacher, which is Rs. 1,400-2,600/-. 15. 1,400-2,600/-. 15. Thus, we although allow this appeal filed by the appellant-State by upholding the order of cancellation of promotion granted to the respondent-teachers, in effect, the respondent-teachers are not a loser as we have noticed that they were entitled to the appropriate scale of Matric Trained Teacher, which would be Rs.1,400-2,600/-. Accordingly, we dispose of this appeal, without any order as to costs.