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2013 DIGILAW 525 (PAT)

Raj Kishor Chaudhary v. State Of Bihar

2013-04-18

AJAY KUMAR TRIPATHI

body2013
JUDGMENT 1. A set of 15 petitioners have jointly moved this High Court in present Writ Application, challenging Annexure-1, which is order, dated 14.03.2002, passed by the Secretary, Primary and Adult Education Department (as it then was). The decision in question is a speaking order, passed on the basis of a direction issued in C.W.J.C. No. 11578 of 1999, disposed off on 06.03.2000. 2. The main issue or relief, which these petitioners were looking for, is grant of benefit of junior selection grade and senior selection grade in I.A. or I.Sc. trained scale, which according to the petitioners would be in conformity with the decision of the State Government, which has been relied upon by the Secretary, but wrongly interpreted or applied. 3. All the petitioners are/were Assistant Teachers or may be Headmasters, working in different government basic schools. They were all appointed on the basis of Matric-trained-scale. Later on some of them have even enhanced their qualification to IA or may be BA or B.Sc. as well. It is their case that they have been given IA or I.Sc. trained scale by decisions, taken by the Divisional Establishment Committee between 01.12.1979 to 01.06.1987. However, they are entitled to junior selection grade and senior selection grade on the recommendation of the Fourth Pay Committee. The notifications issued by Finance Department are in furtherance to those recommendations of the Pay Committee. 4. Learned senior counsel submits that as per paragraph 3 of the impugned decision, contained in Annexure-1, there was a decision of the Finance Department to grant benefit of junior and senior selection grade. This was required to be extended to every service, every cadre and every post. 5. It is their case that a simple reading of the provision will surely accrue in favour of the petitioners. But, while dealing with the issue, the Secretary has committed a major flaw by holding that all teachers of basic schools are one cadre and promotion avenue will be available in only one cadre, forgetting about every service and every post which the Finance Department’s circular had talked about. Learned senior counsel has tried to draw the attention of this Court to those provisions and has tried to convince the Court to read it in the manner in which he perceives it. Learned senior counsel has tried to draw the attention of this Court to those provisions and has tried to convince the Court to read it in the manner in which he perceives it. Even the relevant rule, which have been notified under Article 309 of the Constitution of India and annexed as Annexure – A to the counter affidavit has also been relied upon even by the petitioners to demolish the finding that they are one cadre and benefit once granted on the matric-trained-scale will form the basis for grant of future benefits of junior or senior selection grade, which they are looking for even at the I.A. trained or B.A. trained scale. 6. The stand of the State is otherwise. Obviously it is in support of the decision taken by the Secretary and they have reasons to support the order. According to them, the rule annexed as Annexure – A to the counter affidavit goes to the root of the matters. It has given the definition of cadre and explained what the cadre of Assistant Teachers of basic school mean. The Teachers of basic school are all appointed on the basis of matric-trained. No doubt, if they have acquired higher education of either I.A. trained or B.A. trained they are given a different pay-scale to reward the higher learning, which may be acquired during the period of their service. But they do not alter their basic status or the post which they held as Assistant Teachers under the basic schools. Nowhere I.A. trained or B.A. trained teachers are treated a class, apart from those of the other Assistant teachers on the basis of matric-trained at the time of entry into service. 7. The detail reading of the reason given by the Secretary surely supports the proposition, especially after reading various rules and the circulars with emphasis of rule 75 sub-rule 3, where the definition of the cadre is given. He has explained with examples the decision of the Finance Department as to how it has to be applied and as to why the petitioners can not interpret the circular to derive the benefit, which was not envisaged in the very first place. He has explained with examples the decision of the Finance Department as to how it has to be applied and as to why the petitioners can not interpret the circular to derive the benefit, which was not envisaged in the very first place. They cannot create a class amongst a class to derive benefit of yet another higher pay-scale, when the State has already given them or rewarded them by conferring on them the benefit of higher pay-scale linked with their qualification, though they continue to be Assistant Teachers recruited and continued as one class on the basis of qualification of matric-trained. The higher acquisition of knowledge of I.A or BA trained has not been taken as a basis for treating them as different cadre or qualification. All the teachers are treated as one cadre across the State and no evidence has been shown in the Writ Application or the rejoinder to belie the finding given by the Secretary in his impugned order, contained in Annexure-1. 8. The Finance Department’s circular, especially Circular No. 10770, dated 30.12.1981, no doubt talks about “service”, “cadre” or “post”, which on a first or plain reading can create an impression that such benefit is to be made available at every stage, for every service, for every cadre, and for every post. But according to this Court it is a wrong interpretation, which is sought to be given by the learned senior counsel to derive yet another advantage, which they are not entitled to. 9. The object behind such a decision based on the recommendation of the Fourth Pay Commission was to alleviate the grievances of many a government employees, who stagnate at their post for years together, having no benefit or avenues of promotion at times. Obviously, this caused heart-burning and demotivation. 10. Since it was not possible to Forth Pay Revision Committee to identify each and every post, since they are one to many in the State Government the words “every service”, “every cadre” or “post” have been used in the widest term to ensure that all such government employees, who are facing stagnation without the benefit of higher promotion, would beget indulgence of junior or senior selection grade, which in no manner alters the status and position of the post. Such employees surely get some excitement in their life by being granted a higher pay-scale with the same kind of responsibility of the post. 11. That is not the case of the present petitioners. They have been treated as one cadre across the State in terms of the said circulars. The posts have been identified and only those persons, who come within the zone of consideration of the percentage of post, which was to be identified as 20 percent for the junior selection grade and 10 percent in the senior selection grade were to be extended benefit and not every teacher. 12. Obviously, the bogey of a claim, which is raised by the present petitioners in the present Writ Application is to breach that percentage, to come out of the circular as well as corner a larger share of the pile, which is not contemplated in terms of the circular of the State, which has been rightly interpreted by the Secretary of the Department. 13. The Court, therefore, comes to a considered opinion that there is no infirmity in the decision of the Secretary, contained in Annexure- 1. The question of any discrimination, which was also urged at the bar, has been rightly met by counsel for the State by relying on the principle or the ratio decided by a Full Bench in the case of Bandhu Prasad Singh and others versus State of Bihar and others, reported in 1994 (2) PLJR 279 . The reading of paragraphs 53, 54 and 55 answers the question of discrimination, which the petitioners are making a grievance of, which is illusory and non-existent. 14. Writ Application has no merit. It is dismissed. However, no Order as to costs. 15. However, before parting, one contention of the petitioners does merit consideration. Taking note of the fact that in series of decisions rendered either by this Court or by the Apex Court, one of which is Chandi Prasad Uniyal Vs. State of Uttarakhand, reported in (2012) 8 SCC 417 , that any recovery, which is sought to be made now after such a belated time period, when most of these petitioners have already retired or on the verge of retirement, would be highly inequitable and unfair to be allowed. 16. The stand of the State based on the decision of Full Bench in the case of Ram Binod Singh Vs. 16. The stand of the State based on the decision of Full Bench in the case of Ram Binod Singh Vs. Bihar State Electricity Board, reported in 2007 (3) PLJR 398 , pressed into service by the State would not apply to the present bundle of facts, because even in that Full Bench decision there are situation envisaged where recovery has not been permitted. Recovery has been permitted only on very-very limited grounds and scope, which has been crystallized in paragraph 28 of the said decision. 17. That order of recovery, therefore, stands quashed.