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2013 DIGILAW 1246 (PAT)

Jay Prakash Jyoti v. Ramakant Yadav

2013-10-23

SAMARENDRA PRATAP SINGH

body2013
ORDER All the Civil Review applications have been taken up together for disposal, as they are aggrieved by the part of the order dated 30.01.2013 passed in C.W.J.C. No.13734 of 2012, which was heard analogous with other writ applications. 2. The petitioners have prayed for reviewing the following observations made at page 30, which is quoted herein below:– “Thus there is no indication in the judgment of Division Bench to infer that the benefits of one time relaxation of Rule was to be extended to appointees of 1999-2000 so as to confer them matric trained scale w.e.f. 1.10.2003 even if they pass the training examinations much subsequent to it. It is relevant to state that appellants of Chandra Kant and analogous batch of appeals were appointed in 1994. They struggled to get trained scale, which government acceded by making an agreement with the employees twice between 1994 and 1999 itself. Some of them even moved Hon?ble Apex Court with a grievance that they were denied opportunity of getting higher scale as no training was provided, much less, taking of examination. The Apex Court in S.L.P. No.23187/97 disposed of on 5.9.1997 directed that training be granted within two years. At the relevant time, the appointees of 1999-2000 were not even recruited. Further more, the appointees of 1994 moved this Court as back as in 2011 itself and the matter was finally settled in 2010 vide Chandra Kant case. In such circumstance, the Division Bench noticing the hardship, allowed one time relaxation of provision of Rule 11. As observed by learned Single Judge, the judgment ought not to be inferred to include reliefs or benefits, it did not intend to confer to latter appointees of 1999 to 2000. 3. The review petitioners have also sought review of the order at page 26 onwards, which reads as follows:– Thus the resolution in no manner indicate that even appointees post 1994 would also get Matric trained scale with effect from 01.10.2003, though they will pass training examination in 2005 or even later. The letter dated 10.02.2012 of Principal Secretary, Education Department was issued by way of clarification to the Government order dated 29.07.2011 in view of queries made by District Superintendent of Education. The letter stated that decisions of Chandra Kant case would not only benefit appointees of 1994, but also untrained appointees of 1999-2000. The letter dated 10.02.2012 of Principal Secretary, Education Department was issued by way of clarification to the Government order dated 29.07.2011 in view of queries made by District Superintendent of Education. The letter stated that decisions of Chandra Kant case would not only benefit appointees of 1994, but also untrained appointees of 1999-2000. It is this clause, on which the petitioners have heavily relied. If the contention of the petitioners is to be accepted, then even appointees of 1999-2000 would get matric trained scale w.e.f. 1.10.2003, irrespective of passing the training examination in 1st attempt in 2005 or 2010 or even 2012, which was not the intent of the decision and directions in Chandra Kant case. In my view, the Principal Secretary, Education Department misdirected himself in construing the directions in Chandra Kant case as well as resolution dated 29.07.2011. The resolution of the Government dated 29.7.2011contained in Clause 2 (ka) was with respect to appellants of Chandra Kant case and batch of appeals of 2003 heard analogous. In fact the resolution of the Government stated that vide letter no. 998 dated 07.06.1995 Matric Trained Scale was approved in case of untrained teachers having higher qualification. A revised pay was made effective from 01.01.1996 approving Rs. 4500 – 7000/- for trained teachers and Rs.3050 – 4590 for untrained teachers. Subsequently, the scale of untrained teachers having higher qualification was enhanced to Rs.4500 – 7000/-, vide Finance Department Resolution dated 6.2.1999 which scale was again withdrawn in the year 2000 and 2001 in view of the decision in case of Vinay Kumar Vs. State of Bihar & Ors (C.W.J.C. No.7103 of 2009). However, in view of Courts interim orders, the untrained teachers continued to get the trained scale. It would appear from resolution dated 29.07.2011 that it was issued in back ground of Chandra Kant case and all similarly situated as a one time measure. However, the Principal Secretary vide his letter dated 10.02.2010 enlarged the benefits to cover the cases of teachers who were appointed much later in the year 1999 and 2000. The Division Bench observed that the appellants therein had suffered hardship all these years since their appointment in 1994, and in fact received matric trained scale up to 2003, till it was stopped. The Division Bench observed that the appellants therein had suffered hardship all these years since their appointment in 1994, and in fact received matric trained scale up to 2003, till it was stopped. In such circumstances, the Division Bench observed that if these appellants pass training examination in first attempt or even in second attempt they be given matric trained scale from 1.10.2003 as a one time relaxation of Rule 11 of Rule, 1991 which envisages grant of matric trained scale to untrained teachers only from the dates they pass the training examinations. The letter of Principal Secretary is not only in the teeth of Rule 11 of 2011 Rules but also not in consonance with the direction of Division Bench. The benefit of Division Bench order was to accrue to appellants of Chandra Kant case and at the most to other similarly situated and not to appointees of 1999 and 2000 or of later year. It is difficult to perceive that untrained teachers appointed in 1999-2000 would get matric trained scale w.e.f. 1.10.2003 even though they pass training examination in 2005 or 2010”, 4. The petitioners state that some of the appellants in the batch of cases were appointees of even 1999-2000 and as such would be entitled to similar reliefs flowing from the decision of Chandra Kant case. Citing instances, learned counsel submits that one Nawal Kishore Prabhat, petitioner of C. Review no.325 of 2013, Arun Kumar, petitioner of C. Review no.356 of 2013 were also appellants in L.P.A. No. 473 of 2003, which was heard analogous with L.P.A. No.412 of 2003, Ramakant Yadav, petitioner in C. Review No. 357 of 2013 and Ranjeet Kumar petitioner of C. Review No.375 of 2013, were also appellants in L.P.A. No.469 of 2003 and Subhas Prasad L.P.A. No.454 of 2003, were too heard analogous with L.P.A. No.412 of 2003. 5. However, Mr. Manikant Mishra, learned counsel for the State would contain that at no point of time any of the petitioners in the batch cases disposed of by this Court under Review, ever pointed that some of the appellants in the appeals heard analogous with Chandra Kant case were appointees of the year 1999-2000. Learned counsel thus contends that there is no error apparent on the face of record and the Review petition does not permit rehearing of the matter afresh. 6. Learned counsel thus contends that there is no error apparent on the face of record and the Review petition does not permit rehearing of the matter afresh. 6. Learned counsel submits that review is generally admissible in case of glaring omissions or patent mistakes committed in orders. Learned counsel, in support of his submissions have relied upon judgments in case of M/s Northern India Caterers (India) Ltd. Vs. Lt. Governor of Delhi, reported in (1980) 2 SCC 167 and +Sow Chandra Kante & Ano. Vs. Sheikh Habib, reported in (1975) 1 SCC 674 . On the other hand, the petitioners have placed reliance upon judgment in case of Kirat Rai Vs. Guneshwar Rai & Ors., reported in 1978 PLJR 342 . 7. Before I deal with the parties, it would be necessary to notice the facts of the case in brief: 8. The writ petitioners were appointed as Middle School Teachers in different Elementary Schools between 1988 to 2003. None of them possessed training certificate at the time of their appointment. The years of appointments varied from 1988 to 2003. A Comprehensive chart is detailed as follows:– “C.W.J.C. no. Number of Year of Joining petitioners 14696 of 2012 02 in the year 1988 14739 of 2012 01 in the year 1988 14675 of 2012 01 in the year 1994 14692 of 2012 01 in the year 1994 14664 of 2012 01 in the year 1998 14678 of 2012 03 between 1994 to 1999 13734 of 2012 31 between 1999 to 2003 14652 of 2012 39 between 1999 to 2005 19628 of 2012 06 between 2002 to 2003.” 9. For the sake of convenience C.W.J.C. No.13734 of 20012 was taken as a lead case for referring to pleadings, party positions and annexures. 10. The writ petitioners moved this Court for grant of Matric trained scale w.e.f. 01.10.2003 and some of them further prayed to restrain the respondents from recovering the excess amount paid in Matric trained scale from time to time. 11. The claim of the petitioners for grant of Matric trained scale was founded on Resolution dated 29.07.2011 and letter dated 10.02.2012of Principal Secretary, Education, Government of Bihar contained in Annexures- 6 and 8 to the writ application as well as order dated 22.09.2010 passed in a batch of L.P.A. bearing L.P.A. no.412 of 2003 (Chandra Kant & Ors. Vs. 11. The claim of the petitioners for grant of Matric trained scale was founded on Resolution dated 29.07.2011 and letter dated 10.02.2012of Principal Secretary, Education, Government of Bihar contained in Annexures- 6 and 8 to the writ application as well as order dated 22.09.2010 passed in a batch of L.P.A. bearing L.P.A. no.412 of 2003 (Chandra Kant & Ors. Vs. State of Bihar & Ors.), reported in 2010 (4) PLJR 732 . 12. Paragraph 30 of the judgment on which the petitioners have relied, is quoted herein below:– “30. Coming to the last issue, we find merit in the submission advanced on behalf of the appellants that due to inability of the State Government to hold the required examination within a reasonable time, the appellants who were successful, have suffered undue hardship. In that view of the matter, when the examination could not be held within two years in spite of directions of the Apex Court and even later, as per directions of this Court, we are of the view that the State Government which has the necessary powers, must take steps to relax rule 11 of the Rules as a one time measure within a reasonable time and take a prompt decision to grant matric trained scale to the teachers who have passed the in-service training examination in June,2005 from any date which may be found suitable and reasonable so as not to affect such teachers adversely for the unusual delay in holding the training examination. It would be reasonable and appropriate to grant matric trained scale to such teachers as indicated above from any reasonable date, may be from the date when the period of two years fixed by the Apex Court for completing the training of such teachers expired without compliance or even from 1-10-2003, i.e. when actual payment in Matric trained scale was stopped. Keeping in view the requirements of Article 14 of the constitution, benefit of advancing the date for grant of Matric trained scale, as indicated above will also be made available to such teachers who may pass the training examination in the second attempt. For them the date will vary but benefit should be on same lines as given to those who have passed in the first attempt.” 13. The Division Bench, however, partially modified paragraph 30, vide order dated 08.08.2012 in M.J.C. No.4075 of 2011, which is as follows:– “6. For them the date will vary but benefit should be on same lines as given to those who have passed in the first attempt.” 13. The Division Bench, however, partially modified paragraph 30, vide order dated 08.08.2012 in M.J.C. No.4075 of 2011, which is as follows:– “6. From a perusal of paragraph 30 of the judgment extracted above, it is evident that this Court has not applied its mind as to what would be reasonable and appropriate date for grant of Matric trained scale to such teachers as the petitioners. In view of aforesaid facts, particularly when it is not in dispute that actual payment of Matric trained scale was stopped from different dates and not from 1.10.2003, the illustration that the date may be fixed even from 1.10.2003, which was only by way of simple observation, is modified. That observation may be treated to have been deleted and instead the State Government shall apply its mind with reference to all the relevant facts and fix the date for grant of Matric trained scale to the concerned teachers on the basis of other observations keeping in mind that no adverse effect is caused upon seniority of the concerned teachers by fixing of the date for grant of Matric trained scale.” 14. It is relevant to state that prior to 1991, appointments in Elementary Schools were made on the basis of Circulars and instructions issued by the Government from time to time. In the year 1991, the Hon’ble Governor of Bihar framed Bihar Elementary Teachers Rule, 1991 under Article 309 of the Constitution of India. Rule 1991 provided for appointment of both trained and untrained teachers. As per Rule 11, only trained teachers would get Matric trained scale and untrained teachers irrespective of their qualifications were entitled to Matric untrained scale only. Rule 11 which also provided for in-service training stipulated that an untrained teacher is to be appointed only on the condition that he would take training course forthwith and would appear in the ensuing training examination which has to be passed in maximum of two attempts, failing which, one would forfeit his job. As per Clause 11 (gha), an untrained teachers would be entitled to matric trained scale only after passing of training examination. 15. As per Clause 11 (gha), an untrained teachers would be entitled to matric trained scale only after passing of training examination. 15. Though, 1991 Rules did not favour grant of Matric trained scale for untrained Teacher, still on account of varied reasons, the trained scale got implemented in respect of untrained appointees as well. 16. In the year, 2001, the Government took two fold decisions. One to withdraw the trained scale to untrained teachers, and the next to recover the excess amount paid. The decision of the Government was challenged in writ applications and was duly allowed by learned Single Judge. However, the L.P.A. Bench remanded the matter again to the learned Single Judge, who finally dismissed the writ applications, leading to filing of L.P.A. No.412 of 2003 (Chandra Kant & Ors. Vs. The State of Bihar & Ors) and 89 other appeals. 17. The Division bench noticed that for some reasons or the other, the in-service training were not imparted expeditiously, as a result, the untrained teachers could appear in the training examination only in 2004, the result of which was declared in the year 2005. The Division Bench noticed that the Matric trained scale was stopped to the untrained teachers around 2003. The untrained teachers passed their training examination in 2005, as such the Division Bench observed that by way of one time relaxation of Rule 11, the Government may consider fixing the date of grant of Matric trained scale not only from the date of passing of the examination in 2005 but any date that the State Government may consider it appropriate keeping in mind that no adverse effect is caused upon the seniority of the concerned teachers by fixing the date of grant of Matric trained scale. (Underlining is mine for emphasis) 18. The Government of Bihar in terms of the order of this Court passed in Chandra Kant case (supra) came out with a Resolution dated 29.07.2011 observing that untrained teachers possessing higher qualifications would be entitled to Matric trained scale w.e.f. 01.10.2003 provided that they passed training examination in first attempt. Furthermore, as per the Resolution, the teachers passing the training examination in second attempt, would get trained scale from the date they appeared in the examination. Furthermore, as per the Resolution, the teachers passing the training examination in second attempt, would get trained scale from the date they appeared in the examination. The Principal Secretary, Education Department in its letter dated 10.02.2012 clarifying the Resolution dated 29.07.2011 of the State Government stated that the order of Chandra Kant case (supra) would not only benefit the appointees of 1994 but also compassionate appointees of 1999 and 2000 for favour of Matric trained scale w.e.f. 01.10.2003. 19. This Court on considerations of the facts and circumstances of the case observed that the Principal Secretary, Education Department vide letter dated 10.02.2012 erred in enlarging the benefits accruing from Chandra Kant case (supra) to cover the cases of teachers, who were appointed much latter in the year 1999 and 2000. 20. The petitioners state that the benefits of Chandra Kant case (supra) would also accrue to the appointees of 1999 and 2000, as they were also appellants in the batch of cases heard analogous with L.P.A. No.412 of 2003, and thus entitled to similar treatment, as appointees of the year 1994. 21. The petitioner Sri Jai Prakash Jyoti of Review Application no.301 of 2013 stated that earlier he moved this Court in C.W.J.C. No.124 of 2002 against the impugned communication dated 24.11.2001 of the State Government. The writ application was disposed of by order dated 12.02.2002 observing that the rights of the parties will abide by the decisions of the Division Bench in concerned L.P.A. 22. It is relevant to state that at no point of time during the hearing of the writ applications any of the petitioners pointed out that any of the appellants in L.P.A. No.412 of 2003, which was heard analogous with 89 cases, were appointees either of 1996, 1999 or 2000. Furthermore, nothing in the order of Chandra Kant case (Supra) even in remotest indicate that any of the appellants in analogous appeals were appointees subsequent to 1994. The only paragraph of Division Bench judgment, which gave some details of the date of appointment, is paragraph 7, which is quoted herein below:– “7. By a policy decision dated 5-3-1991 the requirement of teachers training for appointment as assistant teachers for elementary schools was dispensed with and instead provision was made for in-service training and in that light the Bihar Elementary Schools Teachers Appointment Rules i.e. the Rules were framed on 8-10-1991. By a policy decision dated 5-3-1991 the requirement of teachers training for appointment as assistant teachers for elementary schools was dispensed with and instead provision was made for in-service training and in that light the Bihar Elementary Schools Teachers Appointment Rules i.e. the Rules were framed on 8-10-1991. Pursuant to an advertisement dated 8-10-1991 about 25 thousand teachers were appointed under the Rules. The writ petitioners being untrained were appointed in the year 1994 in matric untrained scales of Rs.975/- 1540/-.” 23. This Court in its order under Review also referred to an observation of learned Single Judge in case of Rahul Kumar Vs. The State of Bihar & Ors., reported in 2012 (4) PLJR 586 that order dated 29.07.2011 and 10.02.2012 an administrative orders and have to remain subservient to Rule 11 of 1991 Rule. The observations of learned Judge is quoted herein below for easy reference:– “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 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.” 24. In the backdrop of the facts pleaded by the respective parties, this Court observed that untrained teachers, who were appointed in the year 1994 or before would be entitled to Matric trained scale w.e.f. 2003 even though they have passed their training examination in 2005 in view of Chandra Kant case (supra) providing one time relaxation of Rule 11. Further, those appointed after 1994 would be entitled to matric trained scale, if they passed their In-Service Training Examination in 1st attempt or else from the date they appeared in the examinations, in case, they passed the training examination in 2nd attempt. Further, those appointed after 1994 would be entitled to matric trained scale, if they passed their In-Service Training Examination in 1st attempt or else from the date they appeared in the examinations, in case, they passed the training examination in 2nd attempt. It would appear from the order under Review that this Court had not directed for recovery of excess amount received by post 1994 appointees or appointees of 1999-2000 before withdrawal of such scale between 2001-2003. 25. The petitioners in support of their contentions has placed reliance upon a decision of Kirat Rai Vs. Guneshwar Rai & Ors., reported in 1978 PLJR 342 . In my view, the said decision would have no application in the facts of the case, as the learned Judge observed that there was an error apparent on the face of record, which is not the situation in the instant case. 26. A case is decided on its particular conspectus of facts and orders and judgments of a Court rest on factual foundations laid before it. If the facts would materially vary, the law also would proportionately shift its focus. 27. The petitioners have failed to point out any error apparent on record much less any glaring omissions in the order under Review. 28. In the result, the Review applications are dismissed. The dismissal of the Review applications would not preclude such Review petitioners, who have not earlier moved this Court for reliefs sought by the petitioners of CWJC No.13734 of 2012 and batch of cases heard together and disposed of by order under Review from filing fresh writ applications.