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2014 DIGILAW 385 (JHR)

Veena Anjana Lakara v. State of Jharkhand

2014-03-12

APARESH KUMAR SINGH

body2014
ORDER Learned counsel for the petitioner seeks to undertake certain correction in para 4 and 6 of the supplementary affidavit filed on 19.02.2014. He is permitted to do so during the course of the day in red ink. 2. Heard learned counsel for the parties. 3. The petitioner came before this Court earlier in W. P. (S) No. 280 of 2002 being aggrieved vide letter no. 1917 dated 04.04.2000 issued by the Director, Welfare Department, Government of Bihar as also letter no. 2266 dated 19.10.2001 issued by the respondents whereunder directions were issued to revise the pay scale of untrained teachers working in the Welfare Department as also for recovery of amount paid excess to such teachers. 4. The petitioner as such was appointed as Assistant Teacher in a School under the Welfare Department under Adv. No. 02/92, Annexure-3, which prescribes the minimum educational qualification as Graduate in a particular subject. There was no qualification of Teacher Training prescribed for appointment of teachers in a particular subject under the said advertisement. The appointment letter is at Annexure-4/A dated 14.11.1994 in which the petitioner's name occurs at serial no. 18. The same also refers, the Advertisement No. 02/92 under which the selection exercise was done by the Bihar Vidyalaya Seva Board. Upon her appointment the petitioner was placed in the scale of Rs. 1500-2750/ which were prevalent in the Welfare Department in respect of both Trained and Untrained Teachers. The same were revised in the scale of Rs. 1600-2780/-and under the 5th Pay Revision replacement scale of Rs. 5500-9000/-was given to the petitioner and other such Untrained Teachers in the Welfare Department. This revised scale of Rs. 5500-9000/- was reduced on issuance of the letter no. 1917 dated 04.04.2000 by the Director, Welfare Department, Government of Bihar. This apparently was done on the basis that the scale of Untrained Teacher as prescribed under the Human Resources Development was Rs. 4000-6000/- while the revised scale of Trained Teacher was in the scale of Rs. 5500-9000/-. In such circumstances, the petitioner approached this Court in the earlier writ petition being W. P. (S) No. 280 of 2002. This apparently was done on the basis that the scale of Untrained Teacher as prescribed under the Human Resources Development was Rs. 4000-6000/- while the revised scale of Trained Teacher was in the scale of Rs. 5500-9000/-. In such circumstances, the petitioner approached this Court in the earlier writ petition being W. P. (S) No. 280 of 2002. After noticing the contention of the parties, the matter was remanded to the respondents to give notice and opportunity of hearing to the petitioner before passing any order as the earlier order which reduced the petitioner's scale and sought to recover excess pay was passed without following the principles of natural justice. 5. The respondents had apparently taken a plea in the said writ petition that on the objection of Auditor, the issue relating to payment of Untrained Teachers in a particular scale was noticed and found that the Fitment committee has proposed the scale of Rs. 4000-6000/-to such Untrained Teachers. After taking advise from the Finance Department, once again the reasoned order, which is impugned herein has been passed by the Principal Secretary, Welfare Department, Government of Jharkhand vide order dated 24.11.2008 contained in Memo No. 2484 and annexed as Annexure-20 to the writ petition. The respondent Secretary, Welfare Department has relied upon the letter no. 1917 dated 04.04.2000, which was basis for such reduction of scale and also referred the opinion received from the Finance Department, Government of Jharkhand. The said reasoned order also however takes into account that the petitioner has attained the Teacher Training Qualification after undertaking the course in April, 2008. 6. Learned counsel for the petitioner has assailed the impugned order inter alia on the following grounds:- (i) that at the relevant point of time in view of the specific resolution dated 05.03.1991, the requirement of appointment of Trained Teacher was done away with and the Untrained Teachers were required to attain Teacher Training Qualification from the Government Teacher Training Schools on being sent by the respondent-Government itself. (ii) under the Adv. No. 02/92 issued by the Bihar Vidyalaya Seva Board, there was no requirement of Teachers Training and the petitioner having faced and got selected was appointed as such in Untrained Category vide Annexure-4/A in the prescribed scale of pay of Rs. 1500-2750/-, which was uniformly applied to Trained and Untrained Teachers. (iii) It was contended that the revised scale of Rs. 1500-2750/-, which was uniformly applied to Trained and Untrained Teachers. (iii) It was contended that the revised scale of Rs. 5500-9000/- was also granted by the respondents on their own without any misrepresentation or fraud on the part of the petitioner. However, it has been submitted that the petitioner has also attained the Teacher Training Qualification in service in April, 2008. The reason for delay in attaining such qualification, is evident from the history of previous litigation between such Untrained Teachers and the State on account of absence of proper Teacher Training facilities within the respondent-State. Certain judgments are evidenced at Annexure-27 series in support of the aforesaid contention. (iv) lastly, it has been submitted that the very instruction i.e. the circular of the Director, Welfare Department dated 04.04.2000, which is basis for such reduction in pay scale and recovery has itself been recalled by the Welfare Department, Government of Bihar in its order contained in Memo No. 328 dated 14.02.2014, Annexure-26. He further submits that the said office order also refers that the appointees under Adv. No. 02/92 have been restored the scale of Rs. 5500-9000/- subject to the condition that they should have attained Teacher Training Qualifications till August, 2011 otherwise they will be granted Untrained Teacher Scale. 7. On the part of the respondents, the impugned action has been justified largely on the basis of the Fitment Committee recommendation which prescribes the scale of Rs. 4000-6000/- for Untrained Graduate Teachers under the 5th Pay Revision. The respondents have stated that the petitioner being in Untrained Category since her appointment, was entitled to the scale of Rs. 4000-6000/- alone and not higher scale of Rs. 5500-9000/-, which is applicable to the Trained Teachers. The same was applicable in the Human Resources Development Department and therefore parity has been made in respect of Teachers working under the Welfare Department on issuance of the letter dated 04.04.2000 by the Director, Welfare Department, which was adopted by the State of Jharkhand as well. In the circumstances, the petitioner has rightly been placed in the scale of Rs. 4000-6000/- being in Untrained Category. Any amount paid in excess would amount to unjust enrichment, which is not permissible under Rules of service under which the particular pay scale is fixed for an employee like the petitioner. 8. In the circumstances, the petitioner has rightly been placed in the scale of Rs. 4000-6000/- being in Untrained Category. Any amount paid in excess would amount to unjust enrichment, which is not permissible under Rules of service under which the particular pay scale is fixed for an employee like the petitioner. 8. Having heard learned counsel for the parties and having gone through the relevant materials on records, from the facts which have been evidenced in the pleadings and have been referred to in the earlier part of the judgment as well, it is apparent that the advertisement no. 02/92 under which the petitioner was appointed did not stipulate the mandatory condition of having the Teacher Training Qualification. The petitioner faced the said selection exercise under Adv. No. 02/92 by the Bihar Vidyalaya Seva Board for appointment as Teacher in Schools under the Welfare Department and was appointed vide Annexure-4/A dated 14.11.1994. She was also placed in the scale of Rs. 1500-2750/-, which was subsequently revised at the end of the respondents themselves to Rs. 1600-2780/- and was also given replacement scale of Rs. 5500-9000/-. The whole exercise appears to have been initiated on issuance of direction of the Director, Welfare Department, Government of Bihar being letter no. 1917 dated 04.04.2000. The said letter was apparently issued to provide for parity in the scale of Teachers both Trained and Untrained of such Welfare Department with that of the Human Resources Department. The said scales were introduced upon the recommendation of the Fitment Committee which prescribed the scale of Rs. 4000-6000/- for Graduate Untrained Teachers. Apparently, as per the resolution dated 05.03.1991, the Teacher Training Qualifications were to be obtained by such teachers after joining service in Government Teacher Training College. It also appears that due to absence of proper training facilities in the Government Colleges several litigations ensued. Some of the affected teachers, who were denied a particular grade after attaining qualification of Teacher Training raised their grievances which were decided by this Court in W.P.(S) No. 638 of 2005, which was upheld up to the Hon'ble Supreme Court as well. In such circumstances, the petitioner obtained Teacher Training Qualification in April 2008, which has also been taken into account in the reasoned order. However, the main striking aspect of the matter is that the basis for issuance of the impugned reasoned order being letter no. In such circumstances, the petitioner obtained Teacher Training Qualification in April 2008, which has also been taken into account in the reasoned order. However, the main striking aspect of the matter is that the basis for issuance of the impugned reasoned order being letter no. 1917 dated 04.04.2000 by the erstwhile State of Bihar itself has been recalled by the successor State of Bihar vide 14.02.2014, Annexure-26 to the supplementary affidavit filed by the petitioner. It also takes into account that the appointments were made under the said advertisement in the untrained category, who were expected to achieve training in next few sessions failing which they would be placed in Untrained Scale of pay from June, 2011. With the aforesaid condition the scale of pay of Rs. 5500-9000/- under Vth PRC w.e.f. 01.01.1999 has been restored in respect of such teachers. Therefore, the very basis for reducing the scale of the present petitioner being the letter no. 1917 dated 04.04.2000 has been now revoked by the State of Bihar. It creates a unique situation as while the incumbent in the State of Bihar appointed under the same advertisement no. 02/92 are having benefit of Scale Rs. 5500-9000/- restored to them. The persons like the petitioner, who were also granted the same revised scale are subjected to reduction in scale acting upon letter no. 1917 dated 04.04.2000 without any fault on their part. This would amount to inequality and discrimination amongst the persons who came into service from the same source of appointment. Such stand by the respondent-State therefore cannot be countenanced in the eyes of law even though different scale may have been prescribed by the Fitment Committee in the scale of Rs. 4000-6000/- for the Untrained Teachers. Apparently the petitioner was never at fault for fixation of the said scales as there was no difference between Trained and Untrained Teachers in the Welfare Department at the relevant point of time. In the totality of facts and reasons discussed hereinabove, therefore, the impugned order cannot survive. Accordingly, it is quashed. 9. The petitioner shall be entitled to the revised scale of Rs. 5500-9000/- from the due date along with arrears. 10. The writ petition is, accordingly, allowed in the aforesaid manner.