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2012 DIGILAW 847 (PAT)

Rahul Kumar, Rampukar Sharma, Sarika Kumari & Ajit Kumar v. State Of Bihar Through The Principal Secretary, Department Of Human Resources Development, Government Of Bihar, Patna

2012-06-22

NAVIN SINHA

body2012
ORDER Heard learned Counsel for the petitioners and the State. 2. The petitioners stated to be Assistant Teachers in a Primary and Middle School,, District Aurangabad seek the relief for grant of Matric trained scale with effect from 1.10.2003 relying on resolutions dated 29.7.2011 and 10.2.2012 issued by the respondents. 3. Learned Counsel for the petitioner submits that they were appointed on compassionate ground in February and November 2001. They possessed Graduate qualification at the time of appointment but were untrained. Their appointment letter itself stated that they were required to obtain training within three months. The petitioners were not sent for training till 12.12.2007.They completed their training from IGNOU and completed the same in the Session 2007-2009. Though orders have been given to grant them the trained scale from the date that they have cleared the training qualification even that has not been paid. Without prejudice to the same it is submitted that they are entitled to the trained scale from 1.10.2003. 4. The order dated 29.7.2011 states that such persons who have passed the training examination in the first attempt should be paid trained scale from 1.10.2003 and those who have passed in the second attempt from the date that they appeared at the training examination. The petitioners have passed in the first attempt. It has been further clarified on 10.2.2012 that this benefit shall also be available to those appointed on compassionate ground in the years 1994, 1999 and 2000 also. The controversy was pending consideration before the Court and has ultimately been settled in 2010 (4) PLJR 733 (Chandra Kant v. State of Bihar) disposed on 23.9.2010 and therefore the petitioners were prudently advised to prefer their claims thereafter. 5. In CWJC No. 9461 of 2012 (Manoj Kumar & ors. V. State of Bihar) and CWJC no. 9768 of 2012 (Sanjiv Kumar & ors. V. State of Bihar) a Bench of this Court has directed consideration for grant of trained scale in accordance with instruction dated 29.7.2011 and 10.2.2012.The petitioners have also represented and the writ petition may be disposed off in the similar terms as in Manoj Kumar (supra) and Sanjiv Kumar (supra). 6. 9768 of 2012 (Sanjiv Kumar & ors. V. State of Bihar) a Bench of this Court has directed consideration for grant of trained scale in accordance with instruction dated 29.7.2011 and 10.2.2012.The petitioners have also represented and the writ petition may be disposed off in the similar terms as in Manoj Kumar (supra) and Sanjiv Kumar (supra). 6. Counsel for the State has opposed the application to submit that the petitioners cannot read into the orders dated 29.7.2011 and 10.2.2012 beyond the law as laid down in the case of Chandra Kant (supra), and pursuant to which the instructions have been issued. The facts in Chandra Kant (supra) were entirely different. It has no application in the facts of the present case. The findings therein is that unless the qualification of training is acquired trained scale is prohibited by Rules. The orders in Manoj Kumar (supra) and Sanjiv Kumar (supra) do not contain any discussion with regard to whether the petitioners therein were similarly situated as Chandra Kant (supra) or were similarly situated as the present petitioners. 7. In Chandra Kant (supra) noticing the promulgation of the Bihar Elementary School Teachers Appointment Rules framed on 8.10.1991 the finding is that Rule 11 prohibits grant of trained scale unless and until the incumbent has acquired the training qualification. No executive instruction could dilute the same. The ratio or the discussion cannot be deduced devoid of the facts of the case which can be noticed from para 10- of the judgment. The petitioners therein had completed their training but the examination was not being held. More over the results were published long after the examination was held. The findings are to be noticed in para 29 that no mandamus could be issued for grant of the trained scale contrary to Rule 11. It was in the special facts as noticed in para 30 of the judgment, attributable to the inability of the State Government, to hold the required examination within reasonable time causing hardship and sufferance to those who had completed the training but examination could not be held, noticing the power in Rule 11 for relaxation directions were given to consider their cases in accordance with law. 8. In the present case the petitioners were appointed in 2001.They were required to complete the training in terms of the letter of appointment by 2004. 8. In the present case the petitioners were appointed in 2001.They were required to complete the training in terms of the letter of appointment by 2004. No material has been demonstrated before the Court how they were vigilant and what steps they took for pursuing any grievance that they were being deprived of the opportunity to undergo training. It is only on 21.2.2007 that they made a representation to be sent on training. They were sent for training on 12.12.2007 and have completed the same during 2007-2009 session. Unless and until the results are declared there can be no presumption that a candidate who may have undergone training will necessarily get success. In absence of any provision in the Rule for granting trained scale to the candidates who may have undertaken training as distinct from the date of passing, it is not possible to give any mandamus in respect of the same. Reliance by the petitioners on the orders dated 29.7.2011 and 10.2.2012 appears misconceived. They are administrative orders. They have to remain subservient to Rule 11. Additionally they have been issued in the background of the facts in Chandra Kant (supra). An administrative order cannot be interpreted and read in a manner to include into it something more which is not to be found in the judicial order from which it emanated. It has already been discussed that the facts in Chandra Kant (supra) are factually different from the present case. In para 26 of Chandra Kant (supra) it has been noticed that it was causing hardship and therefore there was a need to take a decision as a one time measure. The Court is satisfied the aforesaid observation is sufficient to hold that the petitioners cannot rely upon it as a precedent also. 9. The issues discussed presently do not appear to have been placed in the case of Manoj Kumar (supra) and Sanjiv kumar (supra). If they were similarly situated as Chandra Kant undoubtedly they were entitled to similar relief. In absence of necessary factual details as considered presently, the Court finds it extremely difficult to accept the submission that the writ petition be disposed off in similar terms as Manoj Kumar (supra) and Sanjiv kumar (supra). 10. The petitioners are held to be entitled to the trained scale from the date that they have acquired training qualification after publication of results. 11. 10. The petitioners are held to be entitled to the trained scale from the date that they have acquired training qualification after publication of results. 11. The writ application is dismissed except to the extent indicated.