IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13193 of 2002 1.HARDAN PRASAD SHRIVASTAVA, son of late Banke Bihari Sahay, resident of village Hapur, P.S. Marhora, District saran, at present working as Incharge Head Master in the Government Basic Middle School, Balua, Anchal Baniapur, District Saran. 2.Mathura Pandit, son of Sri Ramjanam Pandit, resident of village Harpur, P.S. Baniapur, Disrict Sara, at present working as Assistant Teacher in the Government Basic Middle School, Aghara, Anchal Marhora, District Saran. 3.Raj Kumar Manjhi, son of Sri Ram Balak Manjhi, resident of village Khabri, P.S. Baniapur, Distt. Saran, at present working as Incharge Head Master in the Govt. Basic Middle Sczhool, Kawalpura, Anchal Mashrakh, District Saran. 4.Raghubansh singh, son of Sri Kamla Singh, village Bishunpura, P.S. Chapra, Sadar, Distt. Saran, at present working as Incharge Headmaster in the Government Middle School, Pherusa, Anczhal Garkha, Disrtict Saran. 5.Shubhanarayan Singh, son of Shri Ramkripal singh, village Kondh Bhagwanpur, P.s. Mashrakh, District Saran, at present working as Incharge Head Master in Government Basic Middle School, Moriyan Anchal, Masrakh, Distt. Saran. Versus 1.THE STATE OF BIHAR through the Secretary cum Commissioner, Department of secondary Primary and Adult Education, Vikas Bhawan, Bihar, Patna. 2.The Director, Primary Education, Vikash Bhawan, Bihar, Patna. 3.The Regional Deputy Director of Education, Saran Division, Chapra. 4.The District Education Officer, Saran. ----------- 3 30/6/2010 Heard Mr. Ganesh Prasad Singh, learned counsel for the petitioners and counsel for the State. Prayer in this writ application of the petitioners reads as follows:- “That this is an application for issuance of a writ in the nature of certiorari to quash memo no.666 dated 12.8.2002, issued under the signature of the Director, Primary Education, Bihar, whereby and whereunder considering the show cause of one Shri Krishna Mohan Prasad, Assistant Teacher, he has directed for cancellation of the promotion granted to these petitioners and he has issued an order to the Regional Deputy Director of Education, Saran, 2 (hereinafter referred to as „the R.D.D.E. Saran), to cancel the promotion of the petitioners after due enquiry and further to quash the consequential letter issued vide memo no. 1374 dated 23.10.2002, issued under the signature of the R.D.D.E. Saran Division, Chapra, whereby and whereunder he has held that inspite of the letters asked from the District Education officer, no list has been supplied and, therefore, as per the direction of the Director, Primary Education, the B.A. trained scale granted to the petitioners is being cancelled as there is no provision for direct appointment in the B.A. trained scale in the Government Basic School and further he issued a direction for recovery of the aforesaid alleged excess amount in twenty four equal instalments and for issuance of a consequential writ in the nature of mandamus directing and commanding the respondents not to interfere with the present scale being given to the petitioners and for issuance of an appropriate writ, order or direction, for which the petitioners may be found legally entitled to in the facts and circumstances stated hereinafter.” With reference to the aforementioned relief Mr. Singh while assailing the impugned order as contained in Annexure 14 passed by the Regional Deputy Director of Education, Saran Division, Chapra would submit that whatever be the alleged illegality and infirmity in granting the B.A. trained scale of pay to the petitioners, that could not have been cancelled without giving a show cause notice to them. He would also additionally contend that the view taken by the R.D.D.E. Saran is apparently incorrect that there was no provision for direct appointment in the basic School for B.A. trained scale of pay and for this purpose he would refer the notification of the Government contained in letter no. 2440 dated 18.12.1984. There being no counter affidavit in this case, this Court would find it difficult to decide such question of fact. 3 Counsel for the State, however, on the basis of Circular No.2060 dated 15.9.1981 and 2412 dated 5.11.1981 would contend that there was never any provision for direction appointment in B.A. trained pay scale and as such the order granting him such benefit by the R.D.D.E, Saran in his memo no. 48 dated 18.1.1988 (Annexure-1) was itself illegal and in fact void abinaitio. He would also submit that such promotion was given against non existing post by describing it to be the additional post. This Court on an earlier occasion while hearing this writ petition had passed a reasoned order which in fact would unfold the background of the issues involved herein. Said order dated 11.12.2002 is quoted in extenso:- “By order dated 13.11.1996 the Regional Deputy Director of Education, promotion of the petitioners in different grades were held to be illegal and steps were directed to be taken to recover the excess amount paid to the petitioners. Petitioners challenged the said order by filing C.W.J.C. No.6023 of 1997 (Hardan Prasad Srivastava Vs. The State of Bihar & Ors). By order dated 3.9.1998 (Annexure- 8), said order was set aside by this Court and the matter remitted back to respondent no.3 for deciding it afresh, after giving due opportunity to the petitioners. This Court set aside the aforesaid order primarily on the ground that no notice or opportunity was given to the petitioners nor any reason whatsoever was assigned in the impugned order. It was also observed that the relevant provisions were not probably noticed by the concerned authority. Thereafter, the Regional Deputy Director of Education by order dated 22.11.1999 (Annexure-9), directed for continuance of the benefit given to the petitioners in Memo no.4230 dated 12.9.1994. It further observed that the aforesaid relief shall be confined to the petitioners of C.W.J.C. No.6023 of 1997, i.e, petitioners herein. It is relevant here to state that one Krishna Mohan Prasad filed C.W.J.C. NO.2253 of 1998 (Krishna Mohan Prasad Vs. State of Bihar & 4 Ors) against the order of his termination. This Court, by order dated 12.8.1999 (Annexure-10), set aside the order of termination and remitted the matter back to the Regional Deputy Director of Education, Saran Division at Chapra for passing a fresh order with regard to the payment of salary for matric trained and higher scale. In pursuance of the said order, the regional Deputy Director of Education, Saran Division, Chapra passed the order dated 16.3.2000 holding that the grant of B.Sc. trained scale by the then Regional Deputy Director of Education was correct. It seems that thereafter, the Regional Deputy Director of Education by its letter dated 6.10.2001 (Annexure-12) drew the attention of the director of Primary Education that the grant of B.A. trained scale to said Krishna Mohan Prasad was wrong. It seems that thereafter, notice was given to said Krishna Mohan Prasad. When the matter was being considered by the Director, Krishna Mohan Prasad brought to his notice that many persons including the petitioners herein are being given B.A. trained scale. Taking cognizance of the same, the Director, by the impugned order dated 29.7.2002, has directed the Regional Deputy Director of Education to intervene in the matter and rescind the grant of scale of pay and promotion illegally given to the petitioners and fixed 28.8.2002 as the next date of hearing. Ultimately, by order dated 23rd of October, 2002 (Annexure-16), the B.A. trained scale granted to the petitioners was cancelled and the excess payment made was directed to be recovered in 24 instalments. Mr. Singh appearing for the petitioners contends that the orders passed by the Director of Education as also by the Regional Deputy Director of education (Annexures-13 and 16) so far as it concern the petitioners, are vitiated on account of the fact that before passing those orders, no opportunity was given. J.C. to S.C.I prays for six weeks time to seek instruction and file counter affidavit. Time granted. List it thereafter. Till the next date of hearing, operation of the impugned order so far as it directs for recovery of the excess amount paid in 24 instalments is concerned, shall remain stayed.” The respondents, in fact, had they filed their counter 5 affidavit and answered the query made in the order dated 11.12.2002, it could be very easy for this Court to decide the question, inasmuch as, non compliance of natural justice in all the cases cannot be a panacea for protecting all sorts of illegalities. If appointment of the petitioners was void abinitio, inasmuch as, there was no provision for direct recruitment in B.A. trained scale of pay and that it was by way of personal favour bestowed by the R.D.D.E. upon the petitioners that they could be granted B.A. trained scale of pay from Matric trained pay scale in a space of six years of service the passing of corrective impugned order without giving an opportunity of hearing would not cure the inherent defect in the appointment of the petitioners. However, some one has to do this exercise for finding out such illegality. True it is, that the petitioners on the basis of the aforementioned order have been getting higher pay scale, but then if they were not entitled for such benefit contrary to the rules they cannot continue in the B.A. trained pay scale. As the impugned order has been passed by the R.D.D.E, this Court would call upon the superior authority, namely, the Director, Primary Education to examine the whole matter and also give an opportunity of hearing to the petitioners in the matter of their grant of B.A. trained pay scale for recording the finding as to whether order as contained in Annexure-1 dated 18th January, 1988 seeking to make direct appointment of the petitioners in B.A. trained pay scale was valid in law. 6 In the event it is found that the same was valid in law and was sustainable, he would not only annul the impugned order but would also seek explanation from the R.D.D.E as to why he has passed such order. On the contrary, if it is found that Annexure-1 is a void abinitio and was passed by the then R.D.D.E contrary to the rules, in that case he will not be only direct for refund of the entire amount from the petitioners but would also take suitable action against the authority who had passed such illegal order. Till this exercise is made the impugned order as contained in Annexure-14, operation whereof had already been stayed by this Court, shall not be given effect to in the case of the petitioners but at the same time it is made clear that in case of an adverse order passed against the petitioners by the Director Primary Education, such recovery of excess salary drawn by them in B.A. trained scale of pay will be made from their any payable amount including retirement benefit. With the aforementioned observations/directions this application is dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)