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Jharkhand High Court · body

2013 DIGILAW 1253 (JHR)

Ashok Kumar Roy v. State of Jharkhand

2013-11-21

APARESH KUMAR SINGH

body2013
JUDGMENT : By Court Heard learned counsel for the parties. 2. These petitioners are aggrieved by part of the common impugned order (Annexure-10) in all these respective writ petitions contained in different Memo Nos. dated 19th March, 2009, issued under the signature of Deputy Development Commissioner, Deoghar-cum-Member District Education Establishment Committee, Deoghar as also under the signature of District Superintendent of Education, Deoghar. By the impugned order, the petitioners, on the one hand, were promoted to the post of Headmasters i.e. Grade-VII of Bihar Taken Over Elementary School Teachers' Promotion Rules, 1993 (hereinafter referred to as the Rules of 1993) from the effective dates of their joining. However, by part of the same order, the dates of grant of B.Sc Untrained Scale i.e. 1st September, 1982, has been cancelled and they have been treated to be in the Matric Untrained Scale from the date of their appointment. Similarly, the dates of grant of B.Sc. Trained Scale in each individual petitioners case upon acquisition of such Teachers’ Training Qualification has been cancelled and has been reckoned 8 years from the date of acquisition of such qualification in each individual cases. By canceling the aforesaid grant of B.Sc Untrained Scale and B.Sc. Trained Scale from the said dates and making it effective from a subsequent date, the respondents authorities have directed for recovery of the amount paid in excess on account of such pay fixation done in individual cases of each of these petitioners at the relevant point of time. The petitioners obviously are aggrieved by this part of the order. 3. The necessary relevant details of appointments of these petitioners in respective writ petitions, the dates of completion of B.Ed. Teachers’ Training Course in individual cases, the respective dates of orders by which they were granted B.Sc. Trained Scale from the dates of acquisition of such teachers training qualification are being furnished hereunder in the form of tabular chart for better appreciation. Case No. Date of initial appointment Date of completion of Graduate Training Grade-IV & Date of Order granting Graduate Trained Scale Yr. of passing post graduation WP(S) No. 2673/09 01.03.1982 vide memo no. 2362-2573 dated 20.02.1982 03.03.1984 issued vide memo nos. 4716-26 dated 23.06.1984 1985 WP(S) No. 2671/09 03.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.03.1987 issued vide memo nos. 860-64 dated 06.02.1988 1999 WP(S) No. 2672/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo no. of passing post graduation WP(S) No. 2673/09 01.03.1982 vide memo no. 2362-2573 dated 20.02.1982 03.03.1984 issued vide memo nos. 4716-26 dated 23.06.1984 1985 WP(S) No. 2671/09 03.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.03.1987 issued vide memo nos. 860-64 dated 06.02.1988 1999 WP(S) No. 2672/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo no. 3513-16 dated 06.10.1987 1995/2001 WP(S) No. 2675/09 01.03.1982 vide memo no. 2362-2573 dated 20.02.1982 24.06.1986 issued vide memo nos. 270-73 dated 05.01.1988 1999 WP(S) No. 2676/09 W.P(S) No. 2677/09 05.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 05.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 29.01.1984 issued vide memo nos. 1859-63 dated 27.03.1985 27.08.1987 issued vide memo nos. 1026-30 dated 09.03.1990 1998 1988/2000 WP(S) No. 2678/09 05.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo nos. 638-40 dated 02.01.1988 1992 WP(S) No. 2728/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo no. 4924-26 dated 17.11.1987 1999 WP(S) No. 2731/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo nos. 670-75 dated 24.01.1988 1999 WP(S) No. 2732/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 03.03.1984 issued vide memo nos. 4716-26 dated 23.06.1984 1998 WP(S) No. 2733/09 01.03.1982 vide memo no. 2362-2573 dated 20.02.1982 03.03.1984 issued vide memo nos. 341-44 dated 28.02.1987 1998 WP(S) No. 2736/09 03.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 27.08.1987 issued vide memo nos. 670-75 dated 24.01.1988 1996 WP(S) No. 2742/09 01.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 03.03.1984 issued vide memo nos. 4716-26 dated 23.06.1984 1998 WP(S) No. 2743/90 04.03.1982 vide memo nos. 2362-2573 dated 20.02.1982 24.06.1986 issued vide memo nos. 335-36 dated 27.02.1987 2000 4. According to the learned senior counsel for the petitioners, the impugned orders primarily are being challenged on two specific grounds: - (i) that after grant of such B.Sc. Untrained and B.Sc. Trained Scale sometimes in the year 1980 after almost 22-27 years in each individual case respectively, the order for recovery is wholly bad in law and are arbitrary, which cannot be sustained. Learned Senior counsel for the petitioners has relied upon a judgment of Division Bench of this Court in the case of State of Jharkhand, through Director General of Police, Jharkhand, Ranchi & Ors vs. Thakur Ajit Kumar & Ors. reported in 2009 (3) JCR 304 (Jhr.) paras 6 & 7 thereof. Learned Senior counsel for the petitioners has relied upon a judgment of Division Bench of this Court in the case of State of Jharkhand, through Director General of Police, Jharkhand, Ranchi & Ors vs. Thakur Ajit Kumar & Ors. reported in 2009 (3) JCR 304 (Jhr.) paras 6 & 7 thereof. (ii) Learned senior counsel has further assailed the impugned order which adversely affects them on the grounds that shifting of the respective dates of grant of B.Sc. Untrained and B.Sc. Trained Scale in each individual cases have been apparently done on the basis of 1993 Rules, which cannot be said to have retrospective effect and at the same time, cannot take away the rights already vested in these writ petitioners. In support of the aforesaid contention, learned senior counsel for the petitioners has relied upon a judgment rendered in the case of Arbind Bhushan Dey & others-Vs.-State of Jharkhand & others and analogous cases dated 5th December, 2008 reported in 2009 (1) 513 JCR (Jhr.). Learned senior counsel for the petitioners submits that in the said judgment which has also been followed in successive judgment rendered by this Court, it has been held that the Rule of 1993 cannot take away the vested rights granted to such teachers, who have acquired B.Sc. Trained Qualification prior to coming into force of 1993 Rules and who would be entitled to grant of such B.Ed. Trained Scale in view of existing circular in vogue at the relevant point of time i.e.; circular dated 28th November, 1982. 5. Learned senior counsel in order to support the challenge to the impugned order submits that an exercise was undertaken to recruit 2300 science teachers in the primary school upto Class VIII by a conscious decision taken on 20th February, 1981 by the erstwhile State of Bihar. It is submitted that pursuant to such a decision, 1150 such teachers were to be appointed in I.Sc. Trained Scale, while 1150 were to be appointed in B.Sc. Trained Scale in the prescribed scale of pay. It is submitted that the circular provides that in absence of teachers already working appointment could be made from outside candidates by giving preference to the trained teachers and in their absence to such candidates who had high qualification. It is submitted that pursuant to such a decision advertisements were issued for appointment in the District of Santhal Pargana. It is submitted that the circular provides that in absence of teachers already working appointment could be made from outside candidates by giving preference to the trained teachers and in their absence to such candidates who had high qualification. It is submitted that pursuant to such a decision advertisements were issued for appointment in the District of Santhal Pargana. Vide Annexure-1 dated 31st March, 1981, whereunder such interested candidates were asked to make application for appointment in the primary and middle school as Science Teachers. Under the said advertisement, it was indicated that they would be initially paid stipend of Rs. 160 for I.Sc. Trained and Rs. 175 for B.Sc. Trained while Untrained I.Sc and B.Sc teachers would be granted the stipend of Rs. 150/-. Untrained Teachers would be sent for training and after they attain such training, they would be given the prescribed scale of pay after remaining for 15 months under the same stipend. It is submitted that each individual petitioners who were having B.Sc. qualification but were untrained faced the interview and were appointed vide orders which are referred to as Memo No. 2362-2573 dated 20th February, 1982 issued by the District Superintendent of Education, Santhal Pargana, Dumka. It is submitted that 113 number of B.Sc. Untrained Teachers were appointed under the same common order dated 20th February, 1982 having different memo numbers. Learned senior counsel for the petitioners submits by referring to one of the appointment Letters which is annexed as Annexure-3 to the writ petition being W.P.(S) No. 2673 of 2009 that each such teacher was appointed as Science Teacher against the newly created unit for such science teacher in respective schools. Learned senior counsel for the petitioners has further stated that thereafter vide Annexure-5 dated 29th June, 1982 and Annexure-H of the counter affidavit in W.P.(S) No. 2673 of 2009 dated 20th November, 1982, a decision was taken to grant regular scale of pay to all such teachers who had been appointed on the stipend. Under the said decision of 20th February, 1981 about 2300 science teachers were to be appointed. It is further submitted that a perusal of Annexure-H dated 20th November, 1982 to the counter affidavit would show that the total 3000 posts which comprised 2300 and 700 posts created under Government order’s no. Under the said decision of 20th February, 1981 about 2300 science teachers were to be appointed. It is further submitted that a perusal of Annexure-H dated 20th November, 1982 to the counter affidavit would show that the total 3000 posts which comprised 2300 and 700 posts created under Government order’s no. 50 dated 20th February, 1981 and 171 of the same date, were converted into regular scale w.e.f. July, 1982. By the same letter dated 20th November, 1981, it was made effective from 1st September, 1982 and the relevant scales of Matric Trained, Inter Untrained and B.Sc. Trained including Untrained in the respective categories were also prescribed. 6. In view of such a conscious decision, these petitioners upon acquiring the relevant teachers’ training qualification of B.Ed. on the relevant dates as per the Chart contained hereinabove were granted B.Sc. Trained Scale from the respective dates of acquisition of their qualifications. It is submitted that these petitioners were empaneled for consideration of their cases for promotion to the post of Headmaster under a gradation list created in the year 2005 for the district of Deoghar under the aegis of District Superintendent of Education, Deoghar vide letter dated 20th May, 2005. However, the respondents were delaying the matters of grant of promotion to the post of Headmaster. These petitioners had approached this Court in W.P.(S) No. 1327 of 2007( Chandra Shekhar Pandey & Others -Vs.- State of Jharkhand & others) which was disposed of on 15th May, 2007, directing the District Superintendent of Education to pass appropriate order within the stipulated period by placing the matter before the District Education Establishment Committee. Thereafter a contempt petition was filed by the petitioners being Contempt Case No. 553 of 2007 during the pendency of which, the aforesaid impugned order dated 19th March, 2009 was issued. The said contempt was disposed of on 20th April, 2009 in view of the decision taken by the respondents authorities by which these petitioners were granted promotion to the post of Headmaster. However, it is submitted that the earlier grant of Untrained B.Sc. and B.Sc. Trained scale from the respective dates were shifted on a misconceived understanding of Rules 1993. 7. In the aforesaid background, learned senior counsel has challenged the part of the order dated 19th March, 2009 by which earlier grant of B.Sc. Untrained and B.Sc. Trained Scale have been cancelled by the respondents authorities. 8. and B.Sc. Trained scale from the respective dates were shifted on a misconceived understanding of Rules 1993. 7. In the aforesaid background, learned senior counsel has challenged the part of the order dated 19th March, 2009 by which earlier grant of B.Sc. Untrained and B.Sc. Trained Scale have been cancelled by the respondents authorities. 8. Learned senior counsel for the petitioners submits that the respondents have, on the other hand, doubted the existence of the Government Order's No. 50 dated 20th February, 1981 though the same has profusely been evidenced in the impugned order also and is contained at Annexure-4 to the writ application. It is submitted that the aforesaid decision have been taken only against the present writ petitioners though by the same common appointment order dated 20th February, 1982, more than 100 such science teachers, in B.Sc. Untrained Scale were appointed and are still working in different districts under the Santhal Pargana Division. It is submitted that during the pendency of the writ application, the successor District Superintendent of Education has once again considered the matter and by a letter no. 1349 dated 6th July 2012 which is annexed as Annexure-15 to the supplementary affidavit filed in writ application no. W.P.(S) No. 2672 of 1999 has fully justified the grant of B.Sc. Trained and Untrained Scale in respect of each of these individual petitioner. He has also reiterated the genuineness of their appointment in view of the government order dated 20th February, 1981, whereunder outside candidates were to be appointed as science teacher under stipend at the relevant point of time. Learned senior counsel for the petitioners therefore has submitted that at this length of time, though the petitioners have been granted promotion to the post of Headmaster, the impugned order which wholly unjustifiably seeks to cancel a settled position in law as well as on facts and choses to recover the amount already paid to them is wholly harsh, arbitrary and also not sustainable in the facts and circumstances of the case. 9. It is submitted that 1993 Rules do not operate retrospectively to take away the vested right conferred upon these petitioners because of grant of such B.Sc. Trained Scale Teachers at the relevant point of time in 1980, as would be evident from the different orders passed in individual cases and are reflected in the Chart furnished hereinabove. 10. 9. It is submitted that 1993 Rules do not operate retrospectively to take away the vested right conferred upon these petitioners because of grant of such B.Sc. Trained Scale Teachers at the relevant point of time in 1980, as would be evident from the different orders passed in individual cases and are reflected in the Chart furnished hereinabove. 10. Learned counsel for the Respondents-State, has however justified the impugned order which cancels the grant of B.Sc. Untrained and B.Sc. Trained Scale in favour of these petitioners. It is submitted that Rules of 1993 are not under challenge. The Rules of 1993 which have been made effective from 1.1.1986 provide that for promotion from Grade-I to higher Grades i.e. successively upto Grade-VII and Grade VIII, the incumbent teacher has to qualify the prescribed minimum period of service in a particular grade as also to have certain qualification of training before his case could be considered for the next higher grade. It is also submitted on behalf of the learned counsel for the respondents that the appointment letter in respect of each of these petitioners did not specify the reference of the government order no. 50 dated 20th February, 1981 under which 2300 science teachers were to be appointed in Primary school upto Class VIII in different districts of the Parent State of Bihar. It is further submitted that the appointment order in each individual cases clearly laid down that the appointed candidates were to be paid stipend as prescribed. However, in derogation of the appointment order and also in teeth of 1993 Rules, without fulfilling the eligibility criteria for having promotion in a particular grade on attaining teachers' training qualification, these petitioners have been granted B.Sc. Untrained and Trained Scale from the date of their appointment and the dates of acquisition of such qualification which is not proper in the eye of law. Learned counsel for the respondents submits that these facts were considered by the District Education Establishment Committee before issuance of the impugned order and after thorough deliberation of the relevant records relating to individual petitioners, it was found that their original appointment under the Government order no. 50 dated 20th February, 1981 could not be said to be justified. Learned counsel for the respondents submits that these facts were considered by the District Education Establishment Committee before issuance of the impugned order and after thorough deliberation of the relevant records relating to individual petitioners, it was found that their original appointment under the Government order no. 50 dated 20th February, 1981 could not be said to be justified. It is further stated that at the relevant point of time, the scale which was applicable for such Untrained appointees were the untrained matric scale and the concerned authorities wrongly granted them the higher B.Sc. Untrained Scale or the B.Sc. Trained Scale as the case may be. In these circumstances, since these petitioners have wrongly been granted the respective B.Sc. Untrained and Trained Scale earlier, their relevant dates have been shifted in accordance with 1993 Rules. It is submitted that the petitioners cannot claim to have a legal right to receive higher emoluments or salary which is not permissible in law. Learned counsel for the Respondents has relied upon the judgment rendered by Hon'ble Apex Court in the case of Chandi Prasad Uniyal & others -Vs.-State of Jharkhand & others reported in 2012 (4) JLJR SC 93, to submit that any amount paid or received which is not in accordance with the authority of law would amount to unjust enrichment and therefore the employee like the petitioner could not claim that such an amount should not be recovered from them. It is further submitted that no case of hardship can be said to have been made out in the case of these petitioners, as they were having high scale of pay on their promoted post of Headmaster. 11. In these backgrounds, the petitioners have also not chosen to file an appeal which is permissible under Rule 140 of 1993 by straightaway invoking the jurisdiction of the Court in the present writ application. 12. I have heard learned counsel for the parties and gone through the relevant materials on record including the order. The facts which are borne on record and have been discussed hereinabove, in some detail, disclose that there was a conscious decision of the erstwhile State of Bihar which is reflected in the government order's no. 50 dated 20th February, 1981, to make appointment of 2300 science teachers in I.Sc. and B.Sc. Trained Scale in primary school upto Class VIII level. 50 dated 20th February, 1981, to make appointment of 2300 science teachers in I.Sc. and B.Sc. Trained Scale in primary school upto Class VIII level. It is also apparent from the said decision that in absence of regular trained teachers in the existing schools outside, candidate could be appointed who were trained or in their absence even untrained teaches who were having high qualification, could be appointed. These petitioners un-disputedly were having qualification of B.Sc. at the time they faced the interview and selection exercise undertaken pursuant to the advertisement dated 31st March, 1981, issued by the office of District Superintendent of Education, Santhal Pargana, Dumka. On being selected in the panel and in line with their merit, individual appointment letters were issued by an order dated 20th February, 1982 to more than 100 such incumbents teachers, out of which these 14 petitioners' name also figured. The relevant appointment orders are contained in Memo No. 2362-2573. 13. It further appears that pursuant to their appointment, these petitioners were placed against the newly created unit of science teachers in the respective schools against their names reflected in the list which is enclosed along with appointment letter which is also annexed to the counter affidavit of the respondents being Annexure-C in the writ application being W.P.(S) No. 2673 of 2009. 14. It further appears that the decision to pay stipend to such newly appointed Untrained Teachers were subsequently amended by conscious decision of the Government of Bihar, Department of Education, as is also reflected in the decision contained at Annexure-H to the counter affidavit in W.P.(S) No. 2673 of 2009 dated 20th November, 1982 bearing letter no. 3629. A perusal of the said decision indicates that the posts which were created by the office order no. 50 dated 14.1.1981/20 February, 1981 and 171 dated 6th February, 1981/20th February, 1981 i.e. 2300 and 700 such posts were taken in the regular scale of pay from July, 1982 onwards. The scale of pay have also been indicated in the said decision for Matric Trained, Inter trained and B.Sc. Trained as also in the respective Untrained categories. The said decision was made effective from 1st September, 1982. These individual petitioners obtained B.Sc. Trained qualification i.e. B.Ed. The scale of pay have also been indicated in the said decision for Matric Trained, Inter trained and B.Sc. Trained as also in the respective Untrained categories. The said decision was made effective from 1st September, 1982. These individual petitioners obtained B.Sc. Trained qualification i.e. B.Ed. on the respective dates in the year 1984 to 1988 in respective cases, as has been indicated in the Chart hereinabove, as per orders issued by the District Superintendent of Education, Santhal Pargana. The decision to grant B.Sc. Trained Scale from the date of acquisition of training also appears to be justified in view of the circular dated 20th November, 1982 which is also reflected in the judgment dated 5th December, 2008 passed in the case of Arbind Bhushan Dey(Supra). In such circumstances, it also appears from the subsequent letter dated 6th July, 2012 (Annexure-15) to the supplementary affidavit filed in W.P. (S) No. 2672 of 2009 issued by the District Superintendent of Education, Deoghar that such grant of B.Sc. Untrained and B.Sc. Trained Scale to the individual petitioners were approved by the Finance Department of the District of Deoghar at the relevant point of time. It also appears from perusal of Annexure-15 referred to hereinabove that except these petitioners, no other appointees covered under the appointment letter dated 20th February, 1982 have been saddled with such a decision by cancelling their orders of grant of B.Sc. Trained and Untrained scale though they are serving in the respective districts under the original Santhal Pargana District now under the Santhal Pargana Division, Dumka. 15. From submission of the learned counsel for the Respondents-State as also from perusal of the impugned order, it appears that shifting of dates of grant of such B.Sc. Untrained and Trained Scale in respect of the individual petitioners has been done apparently guided by 1993 Rules which stipulates period of time to be undergone in a particular grade of pay even after acquisition of such qualification for being entitled to higher grade. However, it is also evident that in these individual cases, the decision to grant them the B.Sc. Trained Scale was taken before coming into force of 1993 Rules which were notified on 8th July, 1993. However, it is also evident that in these individual cases, the decision to grant them the B.Sc. Trained Scale was taken before coming into force of 1993 Rules which were notified on 8th July, 1993. Though the aforesaid Rules provides for its retrospective operation w.e.f. 1.1.1986, but the aforesaid issue has already crossed the attention of this Court in the case of Arbind Bhushan Dey(Supra), where, it has been held that the Rules cannot be said to have retrospective operation in order to take away the rights vested in persons who had already been granted such benefits in view of the decision taken earlier by the competent authority under the State of Bihar. 16. In view of the aforesaid legal position, since the aforesaid scales were granted to the individual petitioners much before coming into force of 1993 Rules , the decision to cancel such grant of B.Sc. Untrained and B.Sc. Trained Scale in individual cases does not appear to be inconformity with the settled principle of law. A rule which was not in vogue at the relevant point of time would not be made applicable to unsettle the settled things and take away vested rights as has been done in the present cases. It otherwise also appears that the instant decision has been taken almost after 22 - 27 years in case of each individual petitioners whereunder the amount paid under such conscious decision taken in the year 1980's, have now been sought to be recovered from them. This action appears to be arbitrary. This view also finds support from the Division Bench Judgment relied upon by the petitioner rendered in the case of State of Jharkhand, through Director General of Police, Jharkhand, Ranchi (Supra) of this Court. Therefore, considering the issue raised in the present writ applications from any angle, the decision to recover the amount paid to these petitioners on grant of B.Sc. Untrained and B.Sc. Trained Scale in the respective years in the year 1980's cannot said to be justified in the eye of law; rather it is arbitrary and unsustainable. 17. In such circumstances, the part of the order dated 19th March, 2009 which seeks to recover the amount already paid to these petitioners all along under the B.Sc. Untrained and B.Sc. Trained Scale since the respective dates of their grant, cannot be sustained in law and it is accordingly quashed. 18. 17. In such circumstances, the part of the order dated 19th March, 2009 which seeks to recover the amount already paid to these petitioners all along under the B.Sc. Untrained and B.Sc. Trained Scale since the respective dates of their grant, cannot be sustained in law and it is accordingly quashed. 18. Accordingly, the writ petitions are accordingly allowed in the aforesaid manner.