IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8260 of 1997 1. MAKESAR NATH CHAUDHARY, son of late Bhagelu Chaudhary, resident of village Marahiya, P.O. Amar Chapra, P.S. Chapra Moffasil District Saran posted as Assistant Teacher Government Basic School, Balua, P.O. Puchari, P.S. Jalalpur District Saran 2. Dina Nath Singh, son of late Ram Ekbal Singh, resident of village Basarhi, P.O. Gurukul Mehiya, P.S. Chapra Muffasil District Saran posted as Assistant Teacher at Govt. Basic School Feursa, P.O. Ferusa, P.S. Garkha, District Saran 3. Kumari Kalawati, W/o Suresh Prasad, resident of village Rampur Noor Nagar, P.O. and P.S. Jalapur, District Saran posted as Assistant Teacher at Govt. Basic School Bangra, P.O. and P.S. Jalapur District Saran 4. Uma Kumari, w/o Sri Ram Tiwary resident of village Jalalpur Bazar, P.O. and P.S. Jalalpur, District Saran posted as Assistant Teacher Govt. Basic School Rampur Noor Nagar, P.O. and P.S. Jalalpur District Saran 5. Visheshwar Prasad Singh, son of late Bharat Singh, resident of village Piarauta P.O. Narharpur, P.S. Baniapur District Saran posted as Assistant Teacher at Govt. Basic School Bangra P.O. Bangra P.S. Jalalpur District Saran 6. Kumari Kushum, w/o Birendra Kumar Mishra, resident of village Bani P.O. Nagra, P.S. Khaira District Saran posted as Assistant Teacher at Govt. Basic School Rampur Noor Nagar, P.O. and P.S. Jalalpur District Saran … Petitioners Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Department of Secondary Primary and Adult Education, Vikash 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, Chapra … Respondents ----------- 4. 22.7.2010 Heard Mr. Mahesh Narayan Parbat, counsel for the petitioners and Mrs. Nutan 2 Kumari Sharma, A.C. to G.P.15, for the State. The prayer of the aforesaid six petitioners in this writ application reads as follows: “(i) To issue a writ of certiorari for quashing the letter no. G-65/96 dated 30.10.96 (Annexure 5) issued by the Regional Deputy Director Education, saran through which he has been pleased to order to recover the alleged illegal excess amount which was given to the petitioners after their promotion by way of salary in 24 equal instalments. (ii) To issue a further writ of certiorari for quashing the memo no. 2817 dated 15.7.95 (Annexure 3) issued by Regional Deputy Director Education Saran at Chapra through which a direction has been issued that all types of promotions given to the petitioners earlier by the then Regional Dy. Director Education have been cancelled. (iii) To issue a writ of mandamus commanding the respondents to not to cancel the promotion of the petitioners which have been given to them in accordance with law having found them legally entitled. (iv) To issue a further writ of 3 mandamus commanding the respondents to not to realize/ recover any amount in terms of letter no. G- 65/96 dated 30.10.96, which have been paid to the petitioner by way of salary.” Mr. Parbat with regard to the aforementioned relief would submit that even if whatever has been said in the impugned order, as contained in Annexure 5, is accepted to be correct, any order passed in favour of the petitioners claimed by the respondents to be wrong or inadmissible cannot be cancelled by a stroke of pen without individually cancelling those orders. He would further submit that when the petitioners by virtue of the orders, contained in Annexures 1 and 2, had also got financial benefit, their deemed cancellation by Annexure 5 with consequential direction for making recovery being punitive in nature could only be passed after the petitioners were given a notice and/or opportunity of hearing. Counsel for the State, on the other hand, would submit that when there can be no two opinion as with regard to illegality of 4 direct appointment of the petitioners in I.A. trained pay scale as is sought to be conveyed by Annexure 1 to the writ application or the resultant promotion in the selection grade on I.A. trained scale of pay by Annexure 2, there would be hardly any scope for the authorities to pass individual order of cancellation of such order and therefore, Annexure 5 has to be read in consonance with Annexure 3 providing for cancellation of such order in block. He has further submitted that the petitioners even being on repeatedly asked to produce their original appointment letter and other details regarding their appointment in I.A. trained scale of pay did not produce those details on account of which the gradation list of such matric trained teachers of Basic Schools having a district cadre could not be prepared and as such, it is the petitioners who are responsible in withholding such valid information. In the light of the aforementioned submissions and particularly the fact that the petitioners were initially said to be appointed in matric trained scale of pay, 5 for them there could have been only one way of getting I.A. trained and that is by way of promotion. Admittedly Annexure 1 granting them I.A. trained scale of pay is by way of direct recruitment and the same is in teeth of the statutory rules framed by the Government in exercise of power under proviso to Article 309 of the Constitution and notified by a notification No. 2749 dated 11th November, 1975, the relevant portion whereof reads as follows: ^^5- ¼1½ jktdh; cqfu;knh fo|ky;ksa ds lgk;d f'k{kdksa ds laoxZ esa lh/kh fu;qfDr dsoy eSfVzd izf'kf{kr ds inksa ij gh gksxhA ¼2½ vkbZ0 ,0 izf'kf{kr ds in eSfVzd izf'kf{kr osrueku ds lgk;d f'k{kdksa ls ojh;rk ,oa n{krk ds vk/kkj ij vkbZ0 ,0 izf'kf{kr ,oa mij dh ;ksX;rk ds f'k{kdksa esa ls izksUufr }kjk Hkjs tk,axsA izoj dksfV ds in Hkh osrueku fo'ks"k ds lgk;d f'k{kdksa dh ojh;rk ,oa n{krk ds vk/kkj ij izksUufr }kjk Hkjs tk,axsA ¼3½ izR;sd laoxZ esa lgk;d f'k{kdksa dh fu;qfDr ,oa izksUufr fuEufyf[kr lnL;ksa dks feykdj xfBr dh xbZ lfefr dh vuq'kalk ij dh tk,xhA ¼d½ {ks=h; f'k{kksifuns'kd v/;{k ¼[k½ izeaMy ds rhu ojh;re ftyk f'k{kk inkf/kdkjh lnL; ¼x½ izeaMy ds rhu ojh;re ftyk f'k{kk v/kh{kd lnL; ¼4½ lHkh fu;qfD;ka ,oa izksUufr;ka izeaMyh; lfefr dh vuq'kalk ij gksaxhA ¼5½ LFkkbZ vkSj HkjikbZ inksa ij fu;qfDr izeaMyh; lfefr }kjk rS;kj dh xbZ lwph ds vk/kkj ij l{ke izkf/kdkjh djsaxsA izeaMyh; lfefr le; le; ij jkT; ljdkj }kjk fofgr vuqns'kksa vkSj ekud ds vuqlkj lwph rS;kj djsxhSA ¼6½ izR;sd f'k{kd ijh{;eku :I ls nks o"kksZa ds fy, fu;qfDr fd;k tk,xkA lh/kh fu;qfDr ds fy, rS;kj dh xbZ mEehnokjksa dh lwph p;u lfefr }kjk ifj;kstuk ds vuqeksnu dh frfFk ls ,d o"kZ ds fy, fof/kekU; jgsxhA ¼7½ ,d lkFk izksUufr ls rkRi;Z gS ,d oxZ esa gqbZ izksUufrA vkbZ0 ,0 izf'kf{kr izoj dksfV osrueku ds fy, rS;kj dh xbZ lwph ,d o"kZ ds fy, fof/kekU; gksxhA Hkkx 4 ojh;rk 6- ¼1½ gky esa Hkjrh fd, x, ;ksX; eSfVzd izf'kf{kr f'k{kdksa dh ojh;rk ;kS;rk dze esa rS;kj dh xbZ lwph ds vk/kkj ij fu/kkZfjr dh tk,xhA ¼2½ fu;qDr f'k{kdksa dh ojh;rk muds dk;ZHkkj xzg.k djus dh frfFk ds vk/kkj ij fu/kkZfjr dh tk,xhA ;fn ,d gh frfFk dks dbZ f'k{kd inHkkj xzg.k djsaxs rks mudh ojh;rk lwph mudh 'kS{kf.kd ;ksX;rk ds vk/kkj ij gksxhA vxj 'kS{kf.kd ;ksX;rk Hkh ,d gh gks rks ojh;rk mudh mez ds vk/kkj ij fu/kkZfjr gksxhA ¼3½ ;fn ,d gh lkFk lh/kh Hkjrh vkSj izksUufr }kjk vkbZ0-,0 izf'kf{kr O;fDr;ksa dh fu;qfDr gks rks izksUur O;fDr lh/kh HkrhZ }kjk fu;qDr gksus 6 okys O;fDr ls ojh; gksaxsA ¼4½ izoj dksfV esa ojh;rk ml dksfV ds f'k{kdks dh ojh;rk ds vk/kkj ij fu/kkZfjr dh tk,xhA ¼5½ tks f'k{kd vius vuqjks/k ij nqljs laoxZ esa inLFkkfir gksuk pkgsaxs mudh ojh;rk ml laoxZ eas inHkkj xzg.k djus dh frfFk ls fu/kkZfjr dh tk,xhA** From the perusal of the aforementioned statutory rules there can be no iota of doubt that in Basic Schools there was never a concept of direct appointment on the post of I.A. trained and therefore, this Court will have no hesitation in holding that the order, contained in Annexure 1, did not confer any right to the petitioner as the same was in teeth of the statutory rules. Once this Court has come to the conclusion that Annexure 1 giving direct appointment to the petitioners in I.A. trained was/is legal, unsustainable or in capable of conferring no benefit on the petitioners the resultant order of grant of selection grade of I.A. trained pay scale by Annexure 2 has to be also held to be bad. In this context the respondents have rightly relied on the letter of the Director, Primary Education, dated 12th August, 1987 providing, inter alia, ^^vf/klwpuk la[;k&2749 fnukad 11-11-1975 }kjk iz[;kfir fu;ekoyh ds vuqlkj jktdh; cqfu;knh fo|ky;ksa esa esfVzd 7 izf'kf{kr osrueku esas lh/kh fu;qfDr dh tkrh gSA vkbZ0,0 izf'kf{kr ,oa ch0,0 izf'kf{kr osrueku ds inksa dks izksUufr ds }kjk Hkjk tkrk gSA jktdh; cqfu;knh fo|ky; esa esfVzd izf'kf{kr osrueku dk in dksfV dk in gS ftl ij fu;qfDr f'k{kdksa dks duh; izoj dksfV ,oa ojh; izoj dksfV ds osrueku vuqekU; gSA 'ks"k inksa ;Fkk vkbZ0,0 izf'kf{kr@ch0,0 izf'kf{kr ds inksa dks f'k{kdksa dh ;ksX;rk ojh;rk ds vk/kkj ij izksUufr ds }kjk Hkjk tkrk gSA izksUufr ls Hkjs tkus okys inks ads fo:n~/k mDr lqfo/kk,a vuqekU; ugha gSA vr,o jktdh; cqfu;knh fo|ky; ds fuEu voj f'k{kk lsok ds f'k{kdksa dks ch0,0 izf'kf{kr ds du;h izoj dksfV 1000&3330 ls vuqekU; ugha gSA** This Court, therefore, will have no hesitation in holding that either Annexure 1 or Annexure 2 being wholly illegal orders would not have given any benefit to the petitioners. The question, however, would still be that this Court by an order dated 18.9.1997 had stayed recovery from the petitioners which was sought to be made from them in view of the impugned order as contained in Annexure 5. The scope of such interim order, therefore, being only limited to recovery, this Court is not in a position to accept the submission of Mr. Parbat that the petitioners could still manage to get their payment of salary in I.A. trained scale of pay after passing of the impugned 8 order. If really they have managed to do so that action would be an act of illegality which cannot be protected by law. There would be, however, yet another facet of the whole issue, inasmuch as the petitioners have allegedly been appointed in matric trained scale of pay in the year 1982 barring petitioner no.6 who was appointed in the year 1987. The petitioners, therefore, would be entitled for consideration of their promotion in terms of the statutory rules and therefore, when this Court is not aware as to whether a gradation list after filing of the counter affidavit was prepared or not, it would direct the concerned cadre authority, namely, Regional Deputy Director of Education, Saran Division to examine individual cases of the petitioners and if it is found that the petitioners were either given such I.A./ B.A. trained scale of pay on the basis of their original seniority, he would accordingly pass a revised order for their entitlement in I.A. trained scale of pay/ B.A. trained scale of pay. In other words, the petitioners till they are 9 regularized and promoted in I.A. trained scale of pay or B.A. trained scale of pay they would be deemed to have continued only in matric trained scale of pay and any excess amount drawn by them, recovery whereof was stayed by this Court by the interim order, shall now be made from them in easy instalment of not exceeding a sum of Rs. 200/- per month. The issue of recovery, however, will only arise if the petitioners’ promotion as per statutory rules cannot be given to them even as on date, inasmuch as in case the petitioners would be entitled for such grant of I.A. trained scale of pay/ B.A. trained scale of pay from a particular date it would be only a question of adjustment of the excess amount drawn by the petitioner vis-à-vis promotional benefit to which they would become entitled in view of promotion. This Court must note that the respondents have taken a plea of petitioners not furnishing the valid information for preparation of gradation list. The petitioners, however, in rejoinder have not only filed documents but also have enclosed 10 the forwarding letter of their respective Headmasters showing submission of such appointment letter, mark-sheet etc. Therefore, now the respondents can hold an enquiry and decide the seniority of the petitioners in the tentative gradation list, if not already prepared. In order to shorten this process this Court would give liberty to the petitioners to file their individual representation enclosing their appointment letter of matric trained scale of pay and other relevant papers, such as mark-sheet etc. as desired by the authority within a period of four weeks from the date of receipt/ production of a copy of this order, whereafter the Regional Deputy Director of Education, Saran Division shall pass necessary order as with regard to entitlement of the petitioners for grant of I.A./B.A. trained scale of pay. It is made clear that in doing such exercise the R.D.D.E., Saran Division will have no free hand but will have to strictly follow the same procedure as laid down in the statutory rules, namely, processing of 11 cases of promotion through the Divisional Establishment Committee. Such decision by the Committee, therefore, must be taken in the cases of the petitioners within a period of six months from the date of receipt/production of a copy of this order and till such a decision is taken the interim order of this Court dated 18.9.1997 protecting them from recovery shall continue. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/