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Jharkhand High Court · body

2010 DIGILAW 479 (JHR)

Shanti Kumari Sinha v. State of Jharkhand

2010-04-16

D.G.R.PATNAIK

body2010
Order Heard counsel for the parties. 2. Challenge in this writ application is to the order dated 2.9.2004 issued under the signature of District Superintendent of Education, Ranchi (Respondent No.6) whereby, it was ordered to recover the purported excess paid salary front the petitioner, on the ground that the fixation of salary on the Matric Trained Scale on 12.1 .1976 and the subsequent fixation on higher scale including Graduate Trained Scale, was erroneous and not in consonance with the Rules and the petitioner was not entitled to such higher• scales since her position in the gradation list was much below than the other teachers. 3. The case of the petitioner is that she had passed her matriculation examination in the year 1971. She appeared at the test conducted by the respondents for the post of Primary Teachers and upon her being considered successful, she was given letter of appointment and on the basis of which, she joined service on the post of Primary Teacher on 12.1:1976. Upon her completing Teachers' Training, she was given the Matric Trained Scale of Rs. 230-280/- with effect from 13.1.1977. After 10 years of continuous service, she was given the first time bound promotion and the corresponding higher pay scales• of Rs. 680-965/- with effect from 13.12.1988. The grant of first time bound promotion and fixation of the corresponding pay scale, was based on the proper verification of the petitioner's service records and upon approval of the Finance Department. The petitioner in the meantime, had completed her graduation in 1985 and by the order of the District Superintendent of Education, she was given the Graduate Trained Scale of Rs. 1,640-2,900/- with effect from 1 .4.1988. The recognition of the Graduate Trained Scale was made and given to the petitioner on considering the fact that she was M.A. Trained and was working on the sanctioned and vacant post of Graduate Trained Teachers, and since there was no teacher available in Grades-II and III, her services in the Graduate Trained Scale was confirmed by the then District Superintendent of Education, Ranchi vide his order dated 16.3.2001 and the same was entered into her service book. 4. The contention of the petitioner is that her pay scale in the Graduate Trained Scale was sanctioned on the basis of the earlier Rule of 1993 which came into effect with effect from 1.1.1986. 4. The contention of the petitioner is that her pay scale in the Graduate Trained Scale was sanctioned on the basis of the earlier Rule of 1993 which came into effect with effect from 1.1.1986. The petitioner has claimed that there was no anomaly or error in the fixation of her pay in the Graduate Trained Scale. 5. Petitioner has assailed the impugned order on the ground that it is totally illegal, arbitrary and discriminatory and in view of the fact that other teachers who were junior to her and who had joined service on much later date, including those. whose names are mentioned in para-20 of the writ application, have been given Graduate Trained Scale and yet, the petitioner has been sought to be deprived not only of the benefits of the Graduate Trained Scale when the petitioner had become eligible, but she has been arbitrarily subjected to the financial hardship by the order of recovery of the purported excess amount from her salary. 6. Counsel for the petitioner informs that one Md. Irfan Ali who was also appointed as Primary Teacher, being aggrieved by the refusal of the concerned authorities to grant him Graduate Trained Scale, had filed a writ application before this court vide WPS No. 2543 of 2004 and by impleading the petitioner as a respondent in the said writ application, had sought parity with the petitioner. While disposing of the writ application, this court had directed the concerned authorities of the respondents to give the writ petitioner therein the same benefits as was extended to the present petitioner. It was while considering the case of Md. Irfan Ali, that the respondents have sought to reconsider the petitioner's case and had taken an arbitrary decision to revise the da1e from which the Graduate Trained Scale was made effective to the petitioner, from a much later date. 7. It may be mentioned that by an interim order dated 8.10.2004, this court had directed the respondents not to subject the petitioner to any form of coercion. Notwithstanding the interim order, the respondents have reduced the petitioner's• salary to the Matric Trained Scale instead of Graduate Trained Scale. 7. It may be mentioned that by an interim order dated 8.10.2004, this court had directed the respondents not to subject the petitioner to any form of coercion. Notwithstanding the interim order, the respondents have reduced the petitioner's• salary to the Matric Trained Scale instead of Graduate Trained Scale. Upon this fact being pointed out by the petitioner, this court by the subsequent interim order dated 15.9.2009, had directed the respondents to resume payment of salary to the petitioner in the Graduate Trained Scale from 1.4.2009, though such payment was made subject to final decision in this writ application. 8. Denying and disputing the claim of the petitioner, the respondent no. 6 in the counter-affidavit, has taken a stand that the fixing of Matric Trained Scale with effect from 12.1.1976, was wrong and illegal and likewise, the grant of senior pay scale with effect from the date it was fixed, was illegal in view of the fact that it was without prior approval of the competent authority namely, the District Education Establishment Committee. It is sought to be explained, that the petitioner could have legitimately earned her Matric Trained Scale in the scale of Rs. 1,400-2,600/- only with effect from 12.1.1988 and thereafter, she could have earned promotion to the BA Trained Scale only on the basis of the seniority in the list and on the basis of availability of the vacancy in the said scale and that too, with approval of the District Education Establishment Committee. The shifting back of the date for the grant of Matric Trained, Scale with effect from 12.1.1976 and grant of first time bound promotion by computing 10 years working experience from the wrongly fixed date, and the subsequent senior grade scale i.e. the Graduate Trained Scale, was therefore illegal and such illegality would certainly be rectified by the concerned authority of the respondents at any time when the error was detected. It is further sought to be explained that after proper assessment of the petitioner's service records, it is found that she was entitled for grant of Graduate Trained Scale with effect from 1.4.1988 and Senior Scale of BA Trained with effect from 1.4.2000 and communication accordingly was issued to the petitioner. The further stand of the respondents is that instead of fixing the legitimately permissible scale of Rs. 5,000-8,000/-, petitioner's pay was fixed in the scale of Rs. 6,500-10,500/-. The further stand of the respondents is that instead of fixing the legitimately permissible scale of Rs. 5,000-8,000/-, petitioner's pay was fixed in the scale of Rs. 6,500-10,500/-. The amount by way of payment which the petitioner had drawn in excess than what was due to her, has been ordered to be recovered from her. The petitioner's pay scale was wrongly fixed in the scale of Rs. 6,500-10,500/- by granting her out of turn promotion in the B.A. Trained Scale from Grades-II to IV overlooking the seniority and qualification of the other teachers and without seeking approval of the District Education Establishment Committee. 9. Referring to the teachers whose names have been mentioned by the petitioner, including those teachers who have been given the benefits of Graduate Trained Scale despite their being purportedly junior to the petitioner, it is sought to be explained by the respondents that such teachers had already acquired this qualification of graduation in 1980 at the time of their appointment. Such teacher namely, Indu Kashyap was a BA Trained candidate on the date of her appointment, whereas at the time of her appointment, the petitioner had not acquired the qualification of graduate. Indu Kashyap was granted promotion with effect from 1.4.1981 on the basis of the then existing Rules for reserved category of Scheduled Castes candidates. Referring to other teachers namely, Radheshyam Pandey, Hrishi Kesh Mahto and Usha Pandey whose reference was made by the petitioner in the writ application, it is sought to be explained by the respondents that all the abovenamed teachers were appointed in the B.A. Trained Scale against the sanctioned post of basic trained in the year 1982 and after completion of B.Ed. Examination, they got the B.Sc. Trained Scale. On the other hand, the petitioner was appointed on stipend and accordingly, Matric Trained Scale and first time bound promotion was granted in 1977 and 1988 respectively. 10. In reply, the petitioner would want to explain that the fixation of the Matric Trained Scale with effect from 12.1 .1976 and thereafter, grant of first time bound promotion after about completing 10 years of teaching experience, as made by the District Superintendent of Education, was not by way of giving any special favour to the petitioner. 10. In reply, the petitioner would want to explain that the fixation of the Matric Trained Scale with effect from 12.1 .1976 and thereafter, grant of first time bound promotion after about completing 10 years of teaching experience, as made by the District Superintendent of Education, was not by way of giving any special favour to the petitioner. Such fixation was given to the several other teachers including Smt. Gita Banerjee, Durgawati Lakra and Smt. Bhaswati Bhaumik who had joined on the Matric Trained Scale and after completing 12 years of service, they were given the time bound promotion scale. This was in fact in accordance with the Circular issued by the Finance Department of the State Government vide Memo No. 6022 dated 18.12.1989. 11. From the rival submissions, the undisputed facts which emerge are, that the petitioner being a Matriculate, was appointed as a Primary Teacher on the basis of appointment letter dated 9.1.1976 (Annexure-2) on stipend of Rs. 150/- Per Month. Such appointment was admittedly made by way of ad hoc temporary appointment. The amount fixed as stipend was the same as fixed for the Matric Trained Teachers. Admittedly, the petitioner had accepted her appointment and joined service on 12.1.1976.' After she had completed one year service, she was granted Matric Trained Scale with effect from 13.1.1977. 12. As per the then existing Rules, the petitioner had become eligible for her first time bound promotion in the higher scale after completing 10 years of continuous service from the date of her entry in service as a Matric Trained Teacher i.e. with effect from 13.1.1977. The petitioner's case was considered and she was given the" first time bound promotion with effect from 13.1.1987 in the corresponding higher pay scale. The order to this effect was passed by the District Superintendent of Education, Ranchi on 13th October, 1988 and the petitioner was communicated accordingly vide Memo No. 6937 of the same date. 13. It appears that subsequently in the year 1993, a fresh Rule known as Bihar Taken Over Elementary School Teachers' Promotion Rules, 1993 was notified by the Department of Human Resources Development of the State Government on 8th July, 1993 and making the Rules effective from 1st January, 1980. The promotion Rules have categorized the post of teachers under different grades by reference to the pay scale made applicable to each of the grades. The promotion Rules have categorized the post of teachers under different grades by reference to the pay scale made applicable to each of the grades. The minimum of such grade is Grade-I which has been defined as Matric Trained Basic Scale. The Rules provide a condition for promotion from the lower grade to the higher grade. while Grade-I relates to the Matric Trained Basic Scale, Grade-IV relates to the Arts Graduate Scale. Grades above Grade-IV relate to the senior scale and selection scale of trained graduate. 14. While Rule-IV of the Rules lay down a condition for promotion, Rule-III envisages constitution of the Establishment Committee at the district level for considering the cases of the teachers and for taking decision regarding their promotion. Rule-VII of the Rules provides for preparation of the draft seniority list for promotion by the end of month of January of each year based on the position existed on 31 st. December of the previous year. Such seniority list has to be prepared according to the standard laid down in Rule-VIII of the Rules, by the District Superintendent of Education, in the manner prescribed under Rule-VII. The approval of the Establishment Committee has to be obtained on the seniority list so prepared by the District Superintendent of Education. 15. As per Rule-X of the Rules. the decision for promotion shall have to be taken after due consideration by the Establishment Committee against the vacant posts and the order of promotion has to be issued under the joint signature of the D.D.C. and D.S.E. 16. Rule 13 of the Rules lays down that any untrained teacher shall not be eligible for promotion to any of the grades i.e. I to VIII, in the same manner as extended to the employees of the State Government. Untrained Teacher may be given Grade-I only from the date when he becomes trained. 17. Rule-V of the Rules prescribe the minimum educational and training qualification and minimum tenure of service for promotion from lower grade to the higher grade. The Rules stipulate that for promotion from Grade-I to grade-IV i.e. from the Matric Trained Scale to the Graduate Trained Scale, the candidate must be a trained graduate and must put in minimum 8 years of continuous service in Grade-I. Such promotion can be given only in case of non-availability of teachers in Grade-III and Grade-II. 18. The Rules stipulate that for promotion from Grade-I to grade-IV i.e. from the Matric Trained Scale to the Graduate Trained Scale, the candidate must be a trained graduate and must put in minimum 8 years of continuous service in Grade-I. Such promotion can be given only in case of non-availability of teachers in Grade-III and Grade-II. 18. It is not disputed that though, the petitioner was inducted in service on 12.1.1976 on fixed stipend, but she was granted Matric Trained Scale only on and from 13.1.1977 and therefore, the minimum years of work experience had to be undergone "by the petitioner before aspiring for promotion to the higher grade. According to the existing Rules for time bound promotion, she would have been eligible for the first time bound promotion after• completing 10 years of service computed from the date on which she had completed 10 years of continuous service. It appears that even prior to the date when the petitioner could have earned eligibility for time bound promotion, the new Promotion Rule of 1993 came into force and with effect from 1.1.1986, superseding all earlier Rules relating to the promotion of primary teachers. 19. As per the resolution dated 18.12.1989 adopted by the State Government in the Department of Human Resources Development, pursuant to the new Promotion Rule of 1993, the benefit of promotion and fixation of pay in the senior pay scale, could be given to such teachers only after they completed 12 years of service. Thus, the petitioner who was granted the Matric Trained Scale on 13th January, 1977, could have earned the benefit of such promotion and fixation of pay in the senior scale of Matric Trained after completing 12 years of service computed from 13.1.1977. 20. The petitioner was allowed to and was working as an Assistant Teacher in Grade-II scale and was therefore entitled to Grade-II pay scale on the post of Assistant Teacher on and from 12.1.1989. Since the new Promotion Rules of 1993 came into force and was applicable in the case of the petitioner, her promotion from grade-II to Grade-III, as per Clause 5(i) of the Rules, could be given only after she had completed 12 years of service as a Trained Graduate Teacher in Grade-II scale or had completed 18 years of continuous service in the Matric Trained Scale. 21. 21. It may be reiterated that besides the stipulated condition of minimum years of work experience as a teacher in the lower Grade, the Promotion Rules of 1993 also stipulate that the promotion from Grade-II to Grade-IV i.e. from the Matric Trained Scale to Graduate Trained Scale could be given only in accordance with the seniority and that too, in absence of availability. at teachers in the Grade-II. and Grade-III pay scales. Such promotion could be granted only after due consideration by the District Education Establishment Committee. 22. From the undisputed facts of the case, it appears that the petitioner was granted Matric Trained Scale on and from 13.1.1977 and thereby, she could have earned her eligibility for time bound promotion only after completing 10 years of service as per the earlier Rules. She was granted time bound promotion on 12.1.1988 within less than 10 years by computing the date from 12.1.1976 i.e. within less than 10 years from the date when she was granted Matric Trained Scale and by computing 10 years of service period from 12.1.1976 on which date she was inducted on ad hoc appointment, on fixed stipend. Apparently, even though, the petitioner may have joined in 1976, but she was not inducted in the fixed pay scale for the Matric Trained Teachers on that date. 23. As pointed out by the respondents, the higher pay scale by virtue• of time bound promotion was extended to the petitioner by the then District Superintendent of Education by computing the minimum 10 years period of service wrongly from 12.1.1976 instead of 13.1.1977. Such decision for grant of time bound promotion was taken much after coming into force of the 1993 Rules which was made effective from 1st January, 1986, by which the earlier Promotion Aules was superseded. The subsequent promotion to the scale of graduate trained scale appears to have been given to the petitioner by the order of the District Superintendent of Education without prior approval of the District Education Establishment Committee. The respondents have pointed out that in the seniority list prepared as per the requirement of the 1993 Promotion Rules, above the name of the petitioner, there were several teachers available both in Grade-II and Grade-III, whose candidatures could be available for consideration for their promotion to Grade-IV. The petitioner has not disputed the gradation list referred to by the respondents. The petitioner has not disputed the gradation list referred to by the respondents. On the contrary, the petitioner appears to have laid emphasis only on the fact that the orders on the fixed higher pay scale in the Matric Trained Scale and secondly, in the Graduate Trained Scale having been passed by the District Superintendent of Education with• the approval of the Finance Department, the benefit of such promotion cannot be denied to .her and further the situation which had continued to prevail for more than 16 years, ought not to have been disturbed to the detriment to the petitioner. 24. The above plea taken by the petitioner appears to be misconceived and not acceptable. If the facts demonstrate that the promotion granted to the petitioner on the higher pay scales in the Matric Trained Scale and later in the Graduate Trained Scale from the dates they were made effective, were not in consonance with the stipulated Rules, then such orders have to be deemed as illegal and the same cannot enable any right to the petitioner. The respondents could have every right to correct the error as and when detected and to rectify the error by fixing the appropriate date from which the petitioner is found to be legally eligible for the grant of higher pay scales in the concerned grades. 25. Counsel for the respondents informs that after proper assessment of the petitioner's service records, and after considering the petitioner's case, in accordance with the provisions of the 1993 Rules, the dates from which the petitioner was eligible for grant of higher pay scale in the Matric Trained Scale and later, for the grant of Graduate Trained Scale, has been assessed and accordingly granted to the petitioner. 26. As per the explanation offered by the respondents, the benefits of higher' pay scale and promotion to the graduate trained scale was not given to any teacher junior to the petitioner in the seniority list and the promotions granted in the particular grades to the other teachers referred to by the petitioner it the writ application, have been done in accordance with their educational qualification, their position in the seniority list and as per the roster arrangement prescribed under the 1993 Promotion Rules. 27. 27. The insistence of the petitioner that the dates from which the higher pay scale was fixed, both in the Matric Trained Scale and later in the Graduate Trained Scale, should be continued, is not tenable and the' petitioner cannot claim out of turn promotion against the provisions of Rules. 28. It has to be noted however that the benefits of the higher pay scales, though from a wrongly assessed date, both in the Matric Trained Scale and later in the Graduate Trained Scale, was given by the order of the District Superintendent of Education and was allowed to continue for more than 16 years. The petitioner cannot be accused of having practiced any fraud or misrepresentation either in the fixation of the higher pay scales from .the dates when such scales were made effective in her favour or for receiving the purported excess payment. Under such circumstances, it would not be appropriate for the respondents to recover the purported excess paid amount from the salary of the petitioner by taking unilateral decision, that too, without affording any reasonable opportunity to the petitioner of being heard. 29. In the light of the above facts and circumstances and the discussions made, the portion of the impugned order (Annexure.16) whereby the recovery of the purported excess paid amount was directed to be made from the salary of the petitioner, is hereby quashed. However, the date from which the respondents have acknowledged the entitlement of the petitioner for the. Graduate Trained• Scale, is upheld and the petitioner shall continue to receive .the Graduate Trained Scale accordingly. With these observations, this writ application is disposed of Let a copy of this order be given to the learned counsel for the respondent State.