IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6452 of 2002 1.BINDA PRASAD SINGH son of Late Kali Nath Singh, resident of village Kanchanpur Rajason, P.S. Bidupur, Distt. Vaishali. 2.Surendra Choudhary son of Sri Ram Briksh Choudhary, resident of village Barahbatta, P.S. Jandaha, Distt. Vaishali. Versus 1.THE STATE OF BIHAR 2.The Finance Commissioner, Govt. of Bihar, Finance Deptt. Patna. 3.The Special Secretary, Finance Deptt. Govt. of Bihar, Patna. 4.The Director, Primary Education, Human Resources Development Deptt. Govt. of Bihar, Patna. 5.The Secretary Primary Education, Human Resources Development Deptt. Govt. of Bihar, Patna. 6.The Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. 7.The District Education Officer, West Champaran, Town and District Bettiah. 8.The Block Education Extension Officer, Majhaulia-2, District West Champaran. 9.The Head Master, Govt. Middle School, Sariswa Bazar, Majhaulia, 2, Distt. West Champaran. ----------- 4 19.07.2010 Heard Mr. Kripa Nand Jha, learned counsel for the petitioners and learned counsel for the State. Prayer of the two petitioners in this writ application reads as follows:- “(i)For issuance of an appropriate direction, order or writ in the nature of certiorari quashing the letter no.18 dated 11.5.2001 (Annexure-12) issued by the respondent no.9 whereby and whereunder the pay scale of the petitioners has been directed to re-fixed in the pay scale of Rs.3050-4590/- P.M. contrary to the earlier pay scale fixed to the petitioners in the scale of Rs.4500-7000/- and further the recovery of alleged excess amount has been directed to be made from the petitioners. (ii)For further issuance of an appropriate direction, order or writ in the nature of certiorari quashing the consequential pay fixation of the petitioners which has been fixed in the pay scale of Rs.3050-4590 (Annexure-13 and 13/1) dated 23.7.2001. 2 (iii)For issuance of an appropriate direction, order or writ in the nature of mandamus commanding the respondents to restore the earlier pay scale of the petitioners in the pay scale of Rs.4500-7000/- keeping in view the several judgment of this Hon‟ble Court as well as the various decisions by the State Govt. and the finance Department in this regard. (iv)For further commanding the respondents to returned the entire amount of the petitioners which has been illegally deducted from March 2001 from the salary of the petitioners as well as to pay the difference of arrears of salary and current salary w.e.f. 1.1.1996 treating the petitioners salary in the pay scale of Rs.4500- 7000/- P.M. (v)For holding and declaring that the petitioners are entitled to get the pay scale of Rs.4500-7000/- i.e. trained teachers scale as per the pay revision w.e.f. 1.1.1996 and thus any change in scale and recovery from the salary of the petitioner in illegal and void-ab-intio.” Mr. Jha, learned counsel for the petitioners, with reference to the aforementioned reliefs would submit that the order of Headmaster of the School seeking to reduce the pay scale of petitioners is apparently not only in violation of principles of natural justice but also on his misconceived notion that the petitioners do not possess the qualification of matric trained. Mr. Jha, in this context would submit that this Court in a large number of cases having similar facts has remitted the matter to the authority to decide the same after examining individual facts. In this context he would refer to the order of this Court dated 28.4.2003 in C.W.J.C. No.4103 of 2003 (Chandreshwar Chaudhary Vs. State of Bihar & Ors.) as also order of this Court dated 27.2.2009 in C.W.J.C. No.2633 of 2009 (Nirmala Kumari Vs. The State of Bihar & Ors.). The net impact 3 of submission of Mr. Jha is that the petitioners do fulfill the eligibility and qualification of pay scale of Rs.4500-7000/- which was sought to be reduced by the impugned order of the Headmaster by Rs.3050-4590/-. Counsel for the petitioners has also added that during pendency of the writ application the petitioner no.1 has already retired and therefore when the recovery portion of the impugned order had been stayed by the interim order of this Court dated 3.7.2002, no further action need be taken at lest against him. Counsel for the State, on the other hand, has submitted that the petitioners do not possess the training qualification so as to become entitled for the pay scale of matric trained teacher in the primary and middle school. In this context he has also placed reliance on the judgment of this Court in the case of „Binod Kumar Singh & Ors. Vs. State of Bihar & Ors.’ Reported in 1995 (2) PLJR 378, which according to him has also been affirmed on appeal by the Division Bench by order dated 20.1.2003 in L.P.A. No.682 of 1995 (Tej Narayan Pathak Vs. The State of Bihar & Ors.) and L.P.A. No.703 of 1995 (Binod Kumar Singh & Ors. Vs. The State of Bihar & Ors). In the opinion of this Court, the Headmaster of the School, though Drawing and Disbursing Officer, was entitled to pass the impugned order, but then before doing so he had to give an opportunity of hearing to the petitioners, inasmuch as, the petitioners had been given either wrongly or rightly benefit of 4 matric trained pay scale for which fixation was made under the orders of the earlier Headmaster duly countersigned by Block Education Extension Officer. That having been not done, the impugned order is in teeth of the principles of natural justice. Nonetheless, whenever Government revenue is involved as with regard to entitlement of an employee he will have to justify that he was entitled for such pay scale. The Teachers in a Primary and Middle School initially appointed in a matric untrained scale of pay would only be given matric trained scale of pay under the orders of the District Education Establishment Committee. This aspect of the matter though noticed in the impugned order has not been explained in this Court by the petitioners who have relied only on their pay fixation statement which cannot be an authority for grant of matric trained pay scale. Considering all these aspects, this Court would remand the matter to the Director Primary Education, who being head of the department will examine the matter from all angles and would record as to whether the petitioners had fulfilled the requirements of matric trained scale of pay on the date of pay fixation i.e, 23.7.2001, vide Annexure-13 to the writ application. If upon such examination the Director Primary Education is satisfied that there was no anomaly in the fixation of salary of the petitioners in matric trained scale of pay, even in absence of an order of the District Education Establishment Committee, the authority shall record so and would direct for payment of salary of 5 the petitioners in the pay scale of Rs.4500-7000/- and its replacement pay scale which is now payable to the petitioners. On the other hand, if it is found that the petitioners do not fulfill requirement of matric trained scale of pay either due to non fulfillment of qualification or the Government circular as with regard to grant of matric trained pay scale to the Physical Trained Teacher, he would record reasons in his order to this effect. Considering the fact that petitioner no.1 has already retired and petitioner no.2 is only continuing in service, such exercise by the Director Primary Education shall be undertaken within a period of six months from the date of receipt/production of a copy of this order. In view of the fact that the recovery portion of the impugned order was stayed by an interim order of this Court dated 3.7.2002, the same shall continue till disposal of the representation by the Director Primary Education. It is made clear that if it is ultimately held that the petitioners were not entitled to grant matric trained scale of pay and in fact the impugned order passed by the Headmaster was correct, the respondents shall be at liberty to not only continue to pay salary and emoluments to the petitioners in the matric untrained scale of pay, but also would recover the excess amount which has been already paid to them. Such recovery, however, in that case will be ordered in easy installment either from pay of petitioner no.2 or pension of petitioner no.1. 6 With the aforementioned observation and direction this application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)