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2022 DIGILAW 820 (PAT)

Chandrakant v. State of Bihar

2022-09-23

SANJEEV PRAKASH SHARMA

body2022
Sanjeev Prakash Sharma, J.—Heard the parties. 2. All these writ petitions are being decided jointly as common question of law is required to be examined in all the cases. While in some writ petitions the individual orders affecting them individually has been challenged. Essentially all the writ petitions assail the letter, dated 10.11.2020 bearing memo no. 5770 issued by the Secretary, Expenditure, Finance Department, Government of Bihar, whereby the Additional Chief Secretary, Education Department, Bihar, Patna, have been informed that as the senior/super selection grade pay scale is different from ACP/MACP, the benefits of Resolution, dated 07.12.2018, issued by the Finance Department of State Government are not to be extended in favour of teachers who have been extended the benefit of senior/super selection grade pay with effect from 01.01.2006 resultantly it has been directed to make recovery of salary already paid to them on account of granting ACP/MACP. 3. It has been prayed that the recovery of amount that has already been paid to the petitioners applying the ACP/MACP may not be recovered and further the salary be fixed as per the provision contained in Resolution, dated 07.12.2018. 4. In order to examine the issue involved, it would be appropriate to note some facts and for the said purpose the facts of the leading case of Chandrakant (petitioner in C.W.J.C. No. 2783 of 2021) are being noticed. 5. Chandrakant who is petitioner no. 1 in the petition was appointed as Assistant Teacher in the district of Begusarai on 03.09.1994 on the recommendations made by the Bihar Public Service Commission, Patna (hereinafter referred to as, “the BPSC”). By letter, dated 16.11.2000, the Special Secretary of Finance, issued directives for fixation of salary of teachers working in Government schools which, inter alia, prescribe that the fixation of salary of teachers upon being granted promotion in senior/super selection grade pay was not required to be done meaning thereby that on such promotion the enhanced pay scale without benefit of increment would be granted. Therefore, all teachers who were granted benefit of promotion under the senior/super selection grade pay were extended benefit of payment of higher salary in the higher pay scales without granting them benefit of increment. The said pay fixation was therefore not done and higher pay scale was granted in terms of Rule 22 of the Fundamental Rules. 6. Therefore, all teachers who were granted benefit of promotion under the senior/super selection grade pay were extended benefit of payment of higher salary in the higher pay scales without granting them benefit of increment. The said pay fixation was therefore not done and higher pay scale was granted in terms of Rule 22 of the Fundamental Rules. 6. By another Notification, dated 25th June, 2003, assured career progression scheme ( Rules of 2003 ) notified whereby benefit of financial progression was allowed to all the persons who were working in different departments of the State Government. Thus, persons who have completed 12 years of service and 24 years of regular service were given the benefit known as assured career progression. The said Rule of 2003 did not extend to the teachers working in different Government schools and the persons like the petitioners were to be governed by the separate Rules framed by the State Government from time to time. 7. So far as teachers are concerned, vide Resolution, dated 18.12.1989, the Finance Department laid down provisions of scales of pay of teachers and the said Resolution, dated 18.12.1989, provided for grant of promotion as Matric Trained/Intermediate Untrained/Intermediate Trained/Graduation Untrained teachers in the pay scale of Rs.1200-2040/-. On completion of 12 years they were to be granted pay scale of Rs.1400-2600/-. Those who are working as Graduate Untrained teachers or Intermediate Untrained teachers and drawing pay scale of Rs.1200-2040/- were extended benefit of senior pay scale on completion of 12 years of regular service in the pay scale of Rs.1400-2600/-. 8. The State of Bihar issued a Resolution, dated 21.01.2010, from Finance Department and a clarification was issued with regard to revision of pay scale of State Government employees with effect from 01.01.2006. Clause 12 of the said Resolution provided for grant of promotion on or after 01.01.2006 and essentially one increment equal to 3% of sum of pay in the pay-band was to be computed and the Schedule II. Resolution, dated 21.01.2010 laid down the entry level pay for new recruits appointed on or after 01.01.2006 in different pay-bands carrying grade pay. 9. School Teachers Promotion Rules, 2011 came into force vide Notification, dated 01.09.2011 and promotions were to be granted under the said Rules. Resolution, dated 21.01.2010 laid down the entry level pay for new recruits appointed on or after 01.01.2006 in different pay-bands carrying grade pay. 9. School Teachers Promotion Rules, 2011 came into force vide Notification, dated 01.09.2011 and promotions were to be granted under the said Rules. As per Rule 7 of the Rules of 2011 promotions were to be granted on completion of 12 years and 24 years of service in grade II and grade I respectively which were in the form of financial progression. 10. In the aforesaid background similarly placed petitioners submitted their representations claiming entitlement and extension of benefit of senior scale on completion of 12 years of service. 11. The State Government came out with another Resolution, dated 07.12.2018, in furtherance of the directives contained under the Memorandum, dated 20.09.2018, prescribing the manner in which fixation of salary was to be done. As per the said official memorandum letter, dated 20.09.2018, the fixation was to be done in terms of the Resolution, dated 21.01.2010, which prescribed the pay fixation of initial pay was to be done in terms of Schedule II. Thus, for a notional promotion the benefit was required to be given from the date of joining and for nonfunctional promotion the same was to be extended from the due date. The State Government accordingly decided on 22nd February, 2019, to grant benefit of senior scale to the teachers who had been working in the capacity of Intermediate Untrained and Graduate Trained teachers. A corrigendum was issued on 03.09.2019 whereby the expression contained in Clause IV of the official memorandum, dated 22.02.2019, was deleted. Thus, the petitioners claim that on completion of 12 years of regular service from the date of initial appointment the petitioners in terms of the directions issued by this Court in judgment passed in C.W.J.C. No. 6139 of 2007, dated 31st March, 2011, benefit of pay fixation in the pay scale of Rs.9300-34800/- with grade of Rs.4600/- which was the replaced scale of the unrevised pay scale of Rs.5000-8000/- which was the replacement of pay scale of Rs.1400-2600/- required to be fixed and accordingly the respondents extended the said benefit with effect from 03.09.1994. 12. 12. The petitioners have assailed the new order which has been issued on 10.11.2020 which has clarified and held that the teachers would not be entitled for the benefit of ACP/MACP, as the increments had already been granted to the petitioners. 13. In the connected writ petitions the similar prayer has been made. 14. Per contra the counsel for the respondents submits that Resolution No. 892 dated 07.12.2018 stipulates the mandatory conditions for stepping-up its applicability. Firstly, there should be a post of direct recruitment and that the pay of direct recruit after 01.01.2006 is more. Secondly, on the said post of direct recruitment after promotion pay of any promoted person is less than the entry pay as per Schedule II. 15. It is further stated that the teachers of the taken over schools by the Government formed a distinguishable and separate case from the teachers working for the Government schools. Their pay fixation of promotion being governed by FR 22C and instructions issued thereby. The respondents have contended that vide notification, dated 30th August, 1989, FR 22-C was deleted and in its place FR 22 (i)(a)(1) and FR 22(ii)(a)(2) were inserted which read as under :— “22.(I) The initial pay of a Government servant who is appointed to a post on a time scale of pay is regulated as follows : (a)(1) Where a Government servant holding a post, other than a tenure post, in a substantive or temporary or officiating capacity is promoted or appointed in a substantive, temporary or officiating capacity, as the case may be, subject to the fulfillment of the eligibility conditions as prescribed in the relevant Recruitment Rules, to another post carrying duties and responsibilities of greater importance than those attaching to the post held by him, his initial pay in the timescale of the higher post shall be fixed at the stage next above the notional pay arrived at by increasing his pay in respect of the lower post held by the regularly by an increment at the stage at which such pay has accrued or rupees one hundred only, whichever is more. (2) When the appointment to the new post does not involve such assumption of duties and responsibilities of greater importance, he shall draw as initial pay, the stage of the timescale which is equal to his pay in respect of the old post held by him on regular basis, or if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis.” 16. Accordingly, the pay fixation done erroneously in terms of FR 22C was found to be illegal and a circular was issued on 16.11.2000 to this effect directing the Principals/Headmasters to re-fix the pay of the teachers in the terms of the provisions of FR 22(i)(a)(2) since there were no additional responsibilities or duties attached to their promotional post. Excess amounts were directed to be recovered in 20 installments. The said Circular, dated 16.11.2000, was subject matter of dispute and ultimately Supreme Court in Syed Abdul Quadir vs. State of Bihar & Ors. reported in (2009) 3 SCC 475 upheld the validity of Resolution, dated 16.11.2000, holding that they were not entitled for additional increment or grant of promotion. The State Government’s directions for revision of pay scale was approved but the recovery was however restrained. 17. It is contended that the Education Department therefore vide Circular dated 21.10.2010 resolved to grant pay revision to the State Government employees which provided that in case of promotion to one grade pay to another revised pay structure, the fixation will be done as one increment equal to 3% of the sum of pay in the pay band. The ACP Rules and the MACP Scheme, 2010, also contain identical provisions. In paragraph 8(1) of the ACP Rules, 2003 and paragraph 7 of the Schedule I of MACP Scheme 2010, the said clause is not applicable to teachers of the Government taken over schools. As mentioned in paragraph 2 of the ACP Rules 2003 and paragraph 3 of the MACP Scheme 2010. It is only the circular, dated 16.11.2000 which is applicable to such teachers and it is therefore contends by the respondents that resolution dated 07.12.2018 would have no applicability to the teachers of the Raj Kiya Krit (taken over by Government) schools and it is therefore prayed that the writ petition be dismissed. 18. It is only the circular, dated 16.11.2000 which is applicable to such teachers and it is therefore contends by the respondents that resolution dated 07.12.2018 would have no applicability to the teachers of the Raj Kiya Krit (taken over by Government) schools and it is therefore prayed that the writ petition be dismissed. 18. Having noticed the aforesaid submissions of the respective parties, it would be apposite to first notice the judgment passed by the Supreme Court of Syed Abdul Quadir (supra) with reference to the circulars issued by the Finance Department from time to time prior to the impugned circulars dated 07.11.2018 and 10.11.2020. The Apex Court after considering the circulars noticed that FR 22C held as “benefit of additional increment would be granted to the Government servants in the event of his being promoted or appointed to a substantive temporary or officiating capacity to another post carrying greater duty or responsibility than it is attached to the post held by him”, was substituted and replace by FR 22(ii)(a)(1) and FR 22 (i)(a)(2) which read as under:— “Therefore, in cases where on promotion or appointment to the higher post no duties and responsibilities of greater importance than those being discharged in the post held by the incumbent regularly prior to the promotion were to be discharged by the government servant, the pay fixation formula is provided for under FR 22(1)(a)(2) according to which benefit of additional increment is not to be extended at the time of fixation of pay on the promotional post.” 19. The Apex Court Syed Abdul Quadir vs. State of Bihar & Ors. reported in (2009) 3 SCC 475 after noticing the aforesaid provisions held as under : “42. The primal question for consideration in these appeals is as to whether provisions of FR.22-C or FR.22(I)(a)(1) and FR.22(I)(a)(2) would apply to the appellants-teachers. 43. The admitted position in the case on hand is that the post of Assistant Teachers, on promotion to the higher/selection grade, does not carry any duties and responsibilities of greater importance than those attached to the post held by them regularly prior thereto. It is also admitted position that on the day the Resolution was issued by the State Government, i.e., 18th December, 1989, which laid down the criteria for fixation of pay, etc., FR.22-C was not even in existence. 48. It is also admitted position that on the day the Resolution was issued by the State Government, i.e., 18th December, 1989, which laid down the criteria for fixation of pay, etc., FR.22-C was not even in existence. 48. Having regard to the provisions of Clause 13 of Resolution dated 18.12.1989, we hold that pay fixation on promotion of the assistant teachers of Nationalised Schools in the State of Bihar would be governed by FR.22(I)(a)(1) and FR.22(I)(a)(2), as the case may be, and not by FR.22-C, which was not even in existence on the day Resolution dated 18.12.1989 was issued by the Finance Department of the Government of Bihar. Insofar as the appellants-teachers are concerned, since they were not discharging any duties and responsibilities of greater importance on their promotion to the higher post/grade, which is sine qua non for being eligible for an additional increment, they would be governed by FR.22(I)(a)(2) and not by FR.22(I)(a)(1). 59. Undoubtedly, the excess amount that has been paid to the appellants - teachers was not because of any misrepresentation or fraud on their part and the appellants also had no knowledge that the amount that was being paid to them was more than what they were entitled to. It would not be out of place to mention here that the Finance Department had, in its counter affidavit, admitted that it was a bona fide mistake on their part. The excess payment made was the result of wrong interpretation of the rule that was applicable to them, for which the appellants cannot be held responsible. Rather, the whole confusion was because of inaction, negligence and carelessness of the officials concerned of the Government of Bihar. Learned counsel appearing on behalf of the appellants-teachers submitted that majority of the beneficiaries have either retired or are on the verge of it. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 20. Keeping in view the peculiar facts and circumstances of the case at hand and to avoid any hardship to the appellants-teachers, we are of the view that no recovery of the amount that has been paid in excess to the appellants-teachers should be made. 20. Thus after the verdict of the Supreme Court in Syed Abdul Quadir (supra) the question is no more res integra that the pay fixation of the petitioners-teachers is to be governed by FR 22(1)(a)(2) and therefore the teachers would continue to draw the stage of time scale which is equal to his pay in respect to his old post held by him or the next stage above his pay (if there is no more stage) held by him on regular basis. Thus an additional increment is not required to be given. 21. Vide resolution dated 21.01.2010 it was provided for fixation of initial pay in the revised pay structure would be done as under:— “7. Fixation of initial pay in the revised pay structure.—(1) The initial pay of the Government servant who elects, or is deemed to have elected to be governed by the revised pay structure on and from the 1st day of January, 2006, shall unless in any case the State Government by special order otherwise directs, be fixed separately in respect of his substantive pay in the post on which he holds a lien or would have held a lien if it had not been suspended, in the following manner, namely:— (A) In the case of employees:— (i) The pay in the pay band/pay scale will be determined by multiplying the existing basic pay as on 01.01.2006 by a factor of 1.86 and rounding of the resultant figure to the next multiple of 10. (ii) If the minimum of the revised pay band corresponding to the post is more than the amount arrived a as per (i) above, the pay shall be fixed at the minimum of the revised pay band. (ii) If the minimum of the revised pay band corresponding to the post is more than the amount arrived a as per (i) above, the pay shall be fixed at the minimum of the revised pay band. Where in the fixation of pay, the pay of the Government servants drawing pay at two or more consecutive stages in an existing scale gets bunched, that is to say gets fixed in the revised pay structure at the same stage in the pay band, then for every two stages so bunched, benefit of one increment shall be given so as to avaoid bunching of more than two stages in the revised running pay bands. For this purpose, the increments will be calculated on the pay in the pay band. Grade pay would not be taken into account for the purpose of granting increments to alleviate bunching. If by stepping up of the pay as above, the pay of a Government servant gets fixed at a stage in the revised pay band/pay scale (where applicable) which is higher than the stage in the revised pay band at which the pay of a Government servant who was drawing pay at the next higher stage or stages in the same existing scale is fixed, the pay of the latter shall also be stepped up only to the extent by which it falls short of that of the former. (iii) The pay in the pay band will be determined in the above manner. In addition to the pay in the pay band, grade pay corresponding to the post as indicated in Schedule III will be payable. (B) In the case of employees who are not in receipt of special pay/allowance in addition to pay in the existing scale which has been recommended for replacement by a pay band and grade pay without any special pay allowance, pay shall be fixed in the revised pay structure in accordance with the provisions of clause (A) above.” 22. It is to be noticed that so far as the teachers-petitioners are concerned, provision of Rule 12 of the Notification, dated 21.01.2010, would not be applicable in terms of the provisions appended to Rule 12. As the provisions of ACP are not applicable to such a teacher because since the promotion/upgradation did not involve any additional responsibility of the post, nor it is a promotion from one grade pay to another. As the provisions of ACP are not applicable to such a teacher because since the promotion/upgradation did not involve any additional responsibility of the post, nor it is a promotion from one grade pay to another. 23. The Bihar Government Primary Teachers Rules, 2011, were notified by notification dated 01.09.2011 and, therefore, this Court in its judgment, dated 31st March, 2011, held that those teachers who at the time were for initial appointment were intermediate trained or graduate trained, became entitled for senior scale of Rs.1400-2600/- upon completion of 12 years of regular service. 24. However, the Government was conscious enough to notice that graduate trained teachers or intermediate untrained teachers or intermediate trained teachers or matric trained teachers are all in one grade. The fact of training would thus not shift them to higher grade. If their appointment is either untrained or trained teachers, the pay scale only changes by virtue of time bound incentive by giving senior scale after 12 years of service but the grade does not change. They remain in the same grade but in the senior pay scale, hence when a teacher was to be granted senior pay scale of Rs.1400-2600/- he was not required to be given the benefit of increment as the shifting staff in senior scale was to be governed in terms of FR 22(i)(a)(2) as noticed in Syed Abdul Quadir (supra). 25. Similarly on completion of 24 years of service too it being an additional progression 3% of salary as an increment was not required to be given. 26. However, it is noticed that factually the teachers have received the said benefit at the said stage. Since the benefit was extended, the time bound promotion under the ACP and MACP scheme, would not attract benefit of increased increment as the same can not be granted twice. Once the said benefit has already been granted the benefit under the Circular, dated 07.12.2018, of granting increment by multiplying the basis pay with 1.86 factor and further in multiplying 10 for arriving at this pay with effect from 01.01.2006 could not be applied to such teachers. Once the said benefit has already been granted the benefit under the Circular, dated 07.12.2018, of granting increment by multiplying the basis pay with 1.86 factor and further in multiplying 10 for arriving at this pay with effect from 01.01.2006 could not be applied to such teachers. Benefit of Schedule II of pay scale under the Notification, dated 21.01.2010 were granted to the teachers not on account of their consideration on regular promotion and higher responsibility but as by way of time scale benefits as observed by the High Court in its earlier order therefore the clarification issued by the State Government, dated 23.11.2020, can not be said to be unjustified. 27. This Court agrees that as per the Supreme Court judgment passed in the case of Syed Abdul Quadir (supra) granting of higher salary was in the same grade, in terms of the provisions contained in FR 22(1)(a)(2) therefore such teachers were only required to be shifted in the new pay scale as per the gazette notification, dated 22.01.2010, they were not to be treated as the promoted in the higher grade. 28. In the opinion of this Court, therefore, merely because the decision would affect several teachers who have been wrongly granted said benefit and who have also retired, illegallity can not be allowed to be perpetuated. 29. The prayer to quash the letter, dated 10.11.2020, is therefore liable to be rejected. 30. However, in the case of Syed Abdul Quadir (supra) the Supreme Court examined whether recoveries are required to be made in such circumstances and found that the fault does not lie with the individual teachers to whom the benefit has already been advanced and, therefore, any amount which has already been released is not required to be recovered. The view expressed in the case of Syed Abdul Quadir has been reiterated by the Apex Court in the case of State of Punjab & Ors. vs. Rafiq Masih (white washer) & Ors. reported in (2015) 4 SCC 334 and further again reiterated in the case of Thomas Daniel vs. State of Kerala & Ors. reported in 2022 SCC Online SC 536 wherein it has been held as under:— “14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. reported in 2022 SCC Online SC 536 wherein it has been held as under:— “14. Coming to the facts of the present case, it is not contended before us that on account of the misrepresentation or fraud played by the appellant, the excess amounts have been paid. The appellant has retired on 31.03.1999. In fact, the case of the respondents is that excess payment was made due to a mistake in interpreting Kerala Service Rules which was subsequently pointed out by the Accountant General.” 31. In view of the above, the contention raised by the petitioners of having benefit of ACP Scheme or MACP Scheme fails and the order passed by the respondents, dated 10.11.2020 and consequential orders thereto are upheld holding that the petitioners would only be entitled to the benefits granted to them under Circular, dated 16.11.2000. 32. However, it is further held that the petitioners and other teachers who were wrongfully granted benefit of ACP/MACP would have to get their pay fixation revised and if they have retired, their pension would also be accordingly revised. But, no recovery shall be made for the extra amount which they have received 33. All writ petitions are accordingly decided. No costs.