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2013 DIGILAW 1252 (JHR)

Ahmad Jamaluddin v. State of Bihar

2013-11-21

APARESH KUMAR SINGH

body2013
JUDGMENT : Aparesh Kumar Singh, J. Heard learned counsel for the parties. 2. The writ petitioner is aggrieved by the order as contained in Memo No.8038 dated 26.12.1997, Annexure-10 and letter no.2 dated 16.1.1998, Annexure-11, issued by the respondent-District Superintendent of Education, East Singhhum, Jamshedpur, respondent no.4 and respondent no.5, the Headmaster of Amda Middle School, Nutangarh, Dhalbhumgarh, Singhbhum East, whereby IA Trained Scale of the petitioner w.e.f. 1.4.1981 has been cancelled and also salary paid to the petitioner on that account has been ordered to be recovered. 3. Facts, which are necessary for determination of the lis in the present writ petition, are being narrated hereunder: The petitioner is said to have born on 23.9.1948 as per Annexure 1, school leaving certificate and joined as Assistant Teacher on the scale of Rs.120/- per month on 10.4.1971 in Dhaladih Primary School under Circle Potka, East Singhbhum. Thereafter, on 1.4.1973 the scale of the petitioner was enhanced to Rs.250/-per month. The petitioner got transfer to another school in October, 1979 in the same district. He passed his B.A. Examination in 1973 and he said to have completed his teachers training course on 12.10.1977. The petitioner was awarded the matric trained scale on completion of his teachers training course by office order dated 10.8.1978 as contained in Memo no.76972 dated 10.8.1978. The petitioner thereafter has a grievance that certain persons, who had completed the teachers training course with the petitioner in October, 1977, had been awarded I.A. trained scale w.e.f. 1.1.1983 vide office order as contained in Memo No.205/Jamshedpur dated 14.1.1983, as per statements made in para 10 of the writ petition but he was not being granted the said scale. The petitioner has also relied upon the judgment rendered in the case of the teachers, who were directed to be paid the monetary benefits of IA trained scale w.e.f. 1.1.1978 by judgment dated 20.4.1992, Annexure 3 passed in CWJC No.2028/1991(R). 4. The petitioner, however, moved the Patna High Court in CWJC No.2868/1992(R) for grant of IA and BA trained scale of pay. The said writ petition was disposed of by order dated 9.4.1993, Annexure 4, by directing the Director, Primary Education to consider the grievances of the petitioner within stipulated period by passing a reasoned order on his representation. 4. The petitioner, however, moved the Patna High Court in CWJC No.2868/1992(R) for grant of IA and BA trained scale of pay. The said writ petition was disposed of by order dated 9.4.1993, Annexure 4, by directing the Director, Primary Education to consider the grievances of the petitioner within stipulated period by passing a reasoned order on his representation. In the said judgment dated 9.4.1993 the respondents appeared and filed their counter affidavit in which statement was also made that IA trained scale has keen abolished w.e.f. 1.4.1981. At the same time it was also stated that if the petitioner was entitled to get IA trained scale prior to 1.4.1981 his case shall be considered. In respect of BA trained scale also it was stated that the same shall be considered in accordance with law. On the petitioner's representation the Director, Primary Education, in view of the direction passed in the writ petition vide judgment dated 9.4.1993, issued certain directions, which are contained in Annexure-5 dated 21.6.1993 to the effect that the petitioner would not have claim for IA trained scale of pay prior to the date of merger of the cadre of teachers of the Municipal as well as rural schools. After the merger if it is found that post are vacant and any junior to the petitioner has got such benefit then show cause would be given to the said junior person for cancellation of his promotion and the case of the petitioner for promotion be considered by the District Education Establishment Committee. This direction was addressed to the Deputy Commissioner, Jamshedpur. Thereafter the order as contained in Annexure 8 dated 3.2.1994 vide Memo No.104853 was issued under the signature of District Superintendent of Education, East Singhbhum granting IA trained scale to three persons including the present petitioner w.e.f. 1.4.1981. Perusal of the said office order indicates reference to the direction of the Deputy Commissioner cum Chairman, District Establishment Committee, East Singhbhum dated 16.5.1994, judgment passed in case of the petitioner dated 9.4.1993, the direction of the Director Primary Education contained in Memo No.203 dated 29.2.1992 and Memo no.1651 dated 21.6.1993 i.e. Annexure 5. 5. The petitioner thereafter got the benefit of I.A. trained Scale and received the arrears of salary as also the salary of the said I.A. trained scale. 5. The petitioner thereafter got the benefit of I.A. trained Scale and received the arrears of salary as also the salary of the said I.A. trained scale. The petitioner however, received a show cause on 29.3.1997 under the signature of District Superintendent of Education, Jamshedpur to the effect as to why his promotion to the I.A. trained scale be not cancelled as they are contrary to the rules. The petitioner responded by offering reply vide Annexure-9/1 dated 9.4.1997 defending the grant of such scale, inter alia, on the basis of directions passed by the Director, Primary Education dated 21.6.1993 as also the fact that certain junior persons got B.A. trained scale w.e.f. 1.4.1981 itself. Thereafter the impugned order, Annexure-10 has been issued under the signature of the District Superintendent of Education, East Singhbhum, respondent no. 4, by which the I.A. trained scale of the petitioner has been cancelled. 6. From perusal of the impugned order, Annexure-10, it would appear that the following grounds have been taken therein: (i) Grant of I.A. trained scale from the retrospective date i.e. 1.4.1981 was in violation of Rule 74 of the Bihar Finance Rules as also Rule 58 of the Bihar Service Code. (ii) The decision to grant such scale was taken without approval of the District Education Establishment Committee. 7. The order also recorded that except the persons benefited under the direction passed in CWJC No. 2028/1991(R), which is Annexure-3 to the writ application, the grant of I.A. trained scale in respect of other persons like the petitioner is being cancelled, as they were granted on reference of the judgment passed in other case. The consequential order to recover the salary was issued by Annexure-11 dated 16.1.1998. The petitioner, therefore, approached this Court in the present writ petition in which by an interim order dated 25.3.1998 as also 14.10.1998, it was indicated that there shall be stay of recovery from the salary of the petitioner. 8. The writ petition was admitted and is being heard after more than 15 years of its filing. The petitioner is said to have retired in the year 2008 on attaining the age of 60 years as per his date of birth i.e. 23.9.1948. 8. The writ petition was admitted and is being heard after more than 15 years of its filing. The petitioner is said to have retired in the year 2008 on attaining the age of 60 years as per his date of birth i.e. 23.9.1948. In these backgrounds the impugned order has been challenged by the writ petitioner, inter alia, on the ground that pursuant to the direction passed in the case of the petitioner vide judgment dated 9.4.1993 and upon specific direction issued by the Director, Annexure-5 dated 21.6.1993 as also upon approval of the Deputy Commissioner-cum-Chairman District Establishment Committee, East Singhbhum, the order of promotion in the I.A. trained scale was granted to the petitioner w.e.f. 1.4.1981 vide Annexure-8 dated 3.2.1994. It is submitted that when entire exercise for issuance of the order of promotion was undertaken after due deliberation and consideration of all the relevant facts including the contention of the petitioner that certain juniors were granted such promotions, thereafter there was no occasion for the respondents to cancel the grant of such I.A. trained scale on the alleged grounds taken in the impugned order. The impugned order, therefore, is bad in law and needs to be interfered with by this Court. 9. Learned counsel for the respondent-State has opposed the prayer made in the writ petition. It is contended by the learned counsel for the State that the provision of grant of I.A. trained scale was abolished w.e.f. 1.4.1981, as per statement made in para-6 of the counter affidavit. Counsel for the respondents also submits by relying upon averment made in the counter affidavit that grant of retrospective promotion and consequential monetary benefit from a date prior to date of such order of promotion is in contravention of the Rule 58 of the Bihar Service Code and Rule 74 of the Bihar Finance Rules. This irregularities were detected by the District Education Establishment Committee in its meeting dated 13.9.1997 and it was decided to cancel such benefits to the concerned teachers including the present petitioner. 10. It is further stated that an inquiry was conducted by the higher officials of the Education Department, who had found these irregularities during course of the audit of the Finance Department. 10. It is further stated that an inquiry was conducted by the higher officials of the Education Department, who had found these irregularities during course of the audit of the Finance Department. It is also submitted by the learned counsel for the respondents that the merger of teachers of the Municipal and Rural category took place w.e.f. 1.4.1979 and the reliance of the petitioner to such I.A. trained scale to other persons is misplaced as the petitioner was in the rural category unlike other persons, who were in Municipal schools. In these circumstances, the impugned order has been justified by the respondents. 11. I have heard counsel for the parties and gone through the relevant materials on record. The relevant facts, which have been indicated in the opening paragraphs of the writ petition so far as it relates to the date of appointment, date of joining, teacher's training course and grant of matric trained scale to the petitioner is concerned, have not been disputed by the respondents. The only question, which needs to be decided is as to whether the I.A. trained scale, which was granted to the petitioner vide Annexure-8 w.e.f. 1.4.1981 was bad in law and is required to be cancelled. 12. The order, by which the said benefit was granted to the petitioner, Annexure-8, has also been referred earlier, which indicates that the same was issued on the basis of approval of the Deputy Commissioner-cum-Chairman, District Education Establishment Committee, East Singhbhum, dated 16.5.1994 also taking into account the directions passed in CWJC No. 2868 of 1992 as also the relevant directions issued by the Director Primary Education contained in Memo No. 203 dated 29.2.1992 as also Memo No. 1651 dated 21.6.1993. It also appears from perusal of Annexure-5 that the Director Primary Education on the representation of the petitioner and upon hearing the petitioner as well as other persons, who had been granted such benefit, had categorically observed that the case of the petitioner for promotion could be considered against any vacant post available after merger of the Municipal teachers as also the teachers in rural schools. It was also observed that if any junior has been granted promotion, the petitioner's case shall be considered by asking show case to such juniors, who had been granted promotions. It was also observed that if any junior has been granted promotion, the petitioner's case shall be considered by asking show case to such juniors, who had been granted promotions. It, therefore, appears that an exercise was undertaken after passing of the direction in the petitioner’s case vide Annexure-4 by learned Single Bench of the Patna High Court. However, in the said writ petition a counter affidavit was also filed, in which it was stated that the I.A. trained scale has been abolished w.e.f. 1.4.1981. The respondents after due consideration, however, chose to grant the said benefit to the petitioner, which has been sought to be cancelled by the impugned order at Annexure-10, inter alia, on the aforesaid ground of violation of Rule 74 of the Bihar Finance Rules as also Rule 58 of the Bihar Service Code. 13. It is also true that during pendency of the writ petition, the recovery from the salary of the petitioner pursuant to the impugned order was stayed. At the same time, it is not in dispute and has also been reflected in the order at Annexure-4 as also in the averments made in the counter affidavit that the I.A. trained scale was abolished w.e.f. 1.4.1981. 14. In the aforesaid facts and circumstances it, therefore, appears that the respondents by a conscious decision have granted the benefit of I.A. trained scale to the petitioner effective from 1.4.1981, despite the fact that the said concept of I.A. trained scale has been abolished from the State Government. The petitioner, therefore, could not be said to be at fault for such a decision, which was taken on the direction passed by the learned Single Bench of the Patna High Court in the writ petition preferred by the petitioner i.e. CWJC No. 2868 of 1992. 15. The petitioner has also retired in 2008 as aforesaid. The order of recovery was also under stay pursuant to the interim order passed in the present writ petition itself. It would be in the fitness of things that the impugned order be not given effect to for recovery of the amount already paid to the petitioner as otherwise it would cause undue hardship to the petitioner. 16. In aforesaid circumstances, without interfering in the impugned order as contained in Annexure-10, it is directed that no recovery be made pursuant to the same from the petitioner. 17. 16. In aforesaid circumstances, without interfering in the impugned order as contained in Annexure-10, it is directed that no recovery be made pursuant to the same from the petitioner. 17. In view of the aforesaid reasons, the petitioner would avail the salary in the reduced scale pursuant to the impugned order and his other post retirement dues would also be decided on the basis of last pay drawn in the said scale with any due increment or revision as granted from time to time. 18. On account of the aforesaid facts and the reasons, this writ petition is, accordingly, disposed of.