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2017 DIGILAW 1811 (JHR)

Niteshwar Prasad Sinha v. State of Jharkhand

2017-10-19

S.N.PATHAK

body2017
JUDGMENT : S.N. Pathak, J. The petitioners have approached this court with a prayer for quashing the impugned order as contained in letter no. 200 dated 16.2.2010 issued by the District Superintendent of Education, Giridih by which a direction has been issued to all the Headmasters-cum-Drawing and Disbursing Officers within the district of Giridih not to grant any increment to such teachers who are appointed on compassionate ground and further direction has been issued that such teachers appointed on compassionate ground will be entitled only to Matric Untrained Pay Scale at the initial stage without any increment till such teachers obtain Teachers Training certificate and further prayer has been made to quash letter no. 2117 dated 01.12.2010 issued by the District Superintendent of Education, Giridih by which recovery of excess amount has been ordered. Factual Matrix : 2. The petitioners have been duly appointed on compassionate ground in view of the Departmental Rules and Regulations and are posted and working in various Middle Schools situated within the District of Giridih. The date of appointment, name of schools of posting etc. have been mentioned in paragraph no. 6 of the writ application. It has been further stated that all the petitioners are having higher educational qualification than Matriculation and, therefore, as per Departmental Rules and Regulations all the petitioners are entitled to Matric trained Pay Scale with due increment. "A tabular chart has been mentioned in the writ application regarding the order of passing and educational qualifications of the petitioners." It is the specific case of the petitioners that they are possessing higher educational qualification above Matriculation and as such in view of letter no. 2387 dated 3.9.1997 issued by the Director, Primary Education-cum-Special Secretary, Government of Bihar, they are legally entitled to Matric Trained Pay Scale along with the increment and as such all are presently working and drawing Matric Trained Pay Scale along with increment. The pay fixation of all the petitioners was done in Matric Trained Pay Scale by duly granting them increment Union of India v. K.V. Jankiraman (1991) 4 SCC 109 , and State of U.P. v. Dayanand Chakrawarty reported in (2013) 7 SCC 595 and pay fixation was done on the basis of 5th P.R.C. and 6th P.R.C. which was duly attested by the District Superintendent of Education, Giridih. It has been further stated that one fine morning vide letter no. It has been further stated that one fine morning vide letter no. 1260 dated 15.09.2009 the District Accounts Officer, Giridih gave a direction to all the Drawing and Disbursing Officers to stop the increment of Teachers appointed on compassionate ground and a further direction was also given to rectify the pay fixed after stoppage of increment. In view of the said letter and direction contained in Annexure 3, the District Superintendent of Education, Giridih vide letter no. 200 dated 16.2.2010 issued a general direction to all the Headmasters-cum-Drawing and Disbursing Officers of the Middle Schools within the district of Giridih to stop payment of increment to the petitioners who were appointed on compassionate ground. It was also directed that such teachers are only entitled to Matric untrained scale at the initial stage and only after teachers training they will be entitled for Matric Trained Pay Scale and increment. In view of the arbitrary order issued by the respondents, the petitioners made representation to the District Superintendent of Education, Giridih, The District Accounts Officer, Giridih and the other respondents not to comply the said order as the said order was not in accordance with the approval and not in connection with the several judgments passed by the Hon'ble Patna High Court as well as that of the Hon'ble Jharkhand High Court but to utter surprise the said representation of the petitioners were not considered and till date no order has been passed. Since no order was passed on the representation the petitioners now have appeared before this Hon'ble court challenging the order of recovery and also the stoppage of salary as well as nonpayment of the increment. 3. Mr. Bhanu Kumar, the learned counsel for the petitioners strenuously urges that the impugned orders are illegal and arbitrary and not tenable in the eyes of law. Mr. Bhanu Kumar, the learned counsel argues that respondents are even not aware of the fact that the 1991 Rules have already been quashed and set aside by this Hon'ble Court and an order has been passed to the effect that there cannot be any distinction between a compassionate appointee and a regular appointee. Mr. Bhanu Kumar, the learned counsel argues that respondents are even not aware of the fact that the 1991 Rules have already been quashed and set aside by this Hon'ble Court and an order has been passed to the effect that there cannot be any distinction between a compassionate appointee and a regular appointee. When a teacher has been appointed in accordance with law following the procedures, he is entitled for all the benefits whether he has been appointed by way of compassionate ground or by way of regular appointment the issue is now no more res integra. The respondent-authorities have not considered the relevant judgments held by The Hon'ble Patna High Court and Hon'ble Jharkhand High Court. Mr. Bhanu Kumar, learned counsel relies on the letter dated 3.9.1997 issued by the Director, Primary Education, Bihar which is at Annexure 1, page 43 itself is a direction to the respondent-authorities particularly the District Superintendent of Education in view of various judgments of the Hon'ble Patna High Court taken into consideration and the Rule 91 and has come to a conclusion that all the teachers appointed on compassionate ground are entitled for the same salary which others similarly situated teachers are entitled who have been appointed by way of regular appointment having higher educational qualification. 4. Per contra counter affidavit has been filed. Mr. Amit Kumar Sinha, J.C to S.C. V vehemently opposes the contention of the learned counsel for the petitioners. The learned counsel draws the attention of the court towards the several paragraphs of the counter-affidavit particularly paragraph nos. 11, 13 and 14 and submits that in view of Rule 91 the petitioners are not entitled for the salary meant for a regular employee even after considering the several judgments of the Hon'ble Court, the petitioners are entitled only for salary and not for any increments though having higher educational qualification. 5. Be that as it may, having gone through the rival submissions of the parties, this court is of the view considered view that case of petitioners need consideration. The respondents are relying on Rule 91 which has already been quashed and set aside by the Hon'ble Patna High Court as well as Hon'ble Jharkhand High Court. 5. Be that as it may, having gone through the rival submissions of the parties, this court is of the view considered view that case of petitioners need consideration. The respondents are relying on Rule 91 which has already been quashed and set aside by the Hon'ble Patna High Court as well as Hon'ble Jharkhand High Court. The said rule has been taken into consideration and it has been held that the teachers who have been appointed on compassionate ground are liable for the same salary which is to be given to the teachers appointed on regular basis. It has been held by this court in case of Balwant Sahay v. State of Jharkhand and Ors. reported in (2008) 3, JCR 190 which has been upheld by Hon'ble Apex Court in 2008 0 Supreme(Jhk) 359. It has been held by this court that there cannot be any distinction between the teachers appointed from the panel prepared and approved by the District Appointment Committee and the teachers appointed on compassionate ground. Hon'ble court in W.P.(S). No. 3881/03 disposed of on 28.6.11 observed : "A supplementary affidavit has been filed bringing on record two Circulars issued by the Education Department, Annexure-B dated 20.02.1990, wherein the Minority Institution and other Madrasa etc. were also included in the category of such employs appointed by the Government on compassionate ground and Annexure-A was a Circular, vide Letter No. 9/M4-110/97-2387 dated 03.09.1997, whereby it was provided that all those teachers appointed on compassionate ground, are entitled to the grade of salary of Rs. 1200-2040/- ". 6. The contention of the learned counsel for the respondents that though the petitioners are entitled for the regular salary meant for the teachers possessing higher educational qualification but they are not entitled for increments is not acceptable to this court. The said contention of the learned counsel is misconceived. It is not in accordance with law. If the teachers are entitled for regular salary there is no occasion why they are not entitled for increments. The service condition itself shows that teachers who are entitled for regular salary are also entitled for increments unless they are stopped by way of any proceeding against them. In the instant case no such proceeding has been initiated. It is only case of Rule 91 by which petitioners have been deprived of salary and increments. 7. The service condition itself shows that teachers who are entitled for regular salary are also entitled for increments unless they are stopped by way of any proceeding against them. In the instant case no such proceeding has been initiated. It is only case of Rule 91 by which petitioners have been deprived of salary and increments. 7. As a cumulative effect of the aforesaid facts, rules, observations, guidelines and judicial pronouncements, I hereby quash the order dated 16.02.2010 at Annexure-4, page 70, order dated 1.12.2010 at Annexure-8, page 75 as well as order dated 15.09.2009 at Annexure 3, page 69 and as the order of recovery has been made on the basis of order dated 15.09.09 which has already been quashed any recovery pursuant to that order is also quashed. The respondents are directed to refund the entire amount which has been recovered from the petitioners, needless to say that in view of the quashments of the aforesaid orders the petitioners are entitled for regular salary as well as of increments meant for the teachers possessing higher educational qualification. 8. In view, resultantly the writ petition stands allowed. 9. It has been pointed out by the learned counsel for the petitioners that a stay order was granted vide order dated 14.12.11. As the final order has already been passed the order granting stay is vacated. 10. Accordingly, the writ petition stands disposed of. Petition disposed of.