IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5769 of 2007 1. BABU LAL SINGH , Son of Late Jhulan Singh, resident of village- Bhelwa, P.O. and P.S.-Hasua, District-Nawada. 2. Ram Krishna Pd. Sharma, Son of Late Jogeshwar Singh, Village- Aanahlpura, P.O.-Kadirganj, P.S.-Nawada, District-Nawada. 3. Mundrika Pandey, Son of Late Deoki Nandan Pandey, Village- Pandigawan, Nemdarganj, P.S.-Akwarpur, District-Nawada. 4. Bachoo Singh, Son of Late Kameshwar Singh,Village-Siswan, P.O.-Siswan, P.S. Nawada, District-Nawada. 5. Shiv Nandan Singh, Son of Late Mathura Singh, Village-Pandey Bigha, P.O. and Tola P.S. Atrri, District-Gaya, 6. Jai Ram Pd. Singh, S/o Late Alakhdeo Singh, Village-Bhat Bihga, P.O.-Swetar, P.S. Atrri, Distt-Gaya, 7. Madan Mohan Singh @ Madan Pd. Singh, son of Late Jagdish Singh, Village-Sagma, P.O.Wagipur, P.S Wanseliganj, District- Nawada… ………Petitioners Versus 1. THE STATE OF BIHAR, through the Secretary, Human Resources Development Department, Vikas Bhawan, Patna, 2. The Finance Commissioner, Govt. of Bihar, Patna, 3. The Special Secretary, Finance Department Govt. of Bihar, 4. The Secretary, Primary Education, Human Resources Development Department Govt. of Bihar, Vikas Bhawan, Patna, 5. The Director, Primary H.R.D. Education Department Govt. of Bihar, Vikas Bhawan Patna, 6. The Regional Dy. Director of Education, Magadh Division, Gaya (Here referred as R.D.S.E.), 7. The District Superintendent of Education, Nawada (hare on referred as D.S.I) 8. Accountant General, Bihar, Virchand Patel Marg, Patna, 9. Senior Account Officer, A.G. Bihar, Patna… ..Respondents. For the Petitioners : M/s Bankey Bihari Singh, Sanjay Kumar, Shailendra Pd.,Advocates. For the State : Mr. Madhuresh Prasad, GP-XII, Mr. Prabhat Ranjan, AC to GP-XII For the Accountant General: Mr. Dhavendra Chaubey, Advocate ----------- 2 3 07.03.2011 Heard learned counsel for the petitioners, the State and the Accountant General. Counter affidavit has been filed on behalf of the State. Petitioners seek quashing of Annexure-„1‟ issued under Memo No.3411, dated 01.11.2006, whereby petitioners‟ claim for grant of Selection Scale Grade-3, i.e., Rs.1640-2900, as earlier has been granted to them from the year 1993-94, has been rejected and after quashing of the aforesaid order issued by District Superintendent Education Nawada, the petitioners also seek consequential benefits of revision of their pension and other benefits which were granted to them earlier and also refund of excess amount recovered from them. It is submitted on behalf of the petitioners that the petitioners were earlier granted Grade-3 scale from the dates mentioned from year 1989 to 1993. However, subsequently that order was reviewed without giving opportunity of hearing to the petitioners and the pay scales of the petitioners were lowered down and recoveries were also ordered to be made from them. The petitioners had earlier approached this Court by filing CWJC No. 3802 of 2004, which was allowed by the 3 order dated 31.01.2006 (Annexure-14) on the ground that the impugned order was passed without following the principle of natural justice. Thus, the authorities were directed to proceed in the matter in accordance with law after giving due opportunity to the petitioners. Thereafter, the petitioners had filed their representations upon which the impugned order (Annexure-„1‟) has been passed rejecting their claim. Learned counsel for the petitioners contended that the relevant Rules, Bihar Taken Over Elementary School Teachers‟ Promotion Rules 1993 (hereinafter referred as “the Rules”) came into existence on 8th of July 1993 and was made effective from Ist of January 1986. It is contended that since it was made effective from 1st of January 1986, the petitioners were entitled to be promoted to the Trained Selection Grade-3 pay scale after counting their services from the date of their appointment. Learned counsel drew attention of this Court towards the Rules 5 and 7 thereof. It is contended that the authorities concerned have committed error in stating that the petitioners were entitled to be promoted in the Grade-3 scale only after completion of 12 years of service from Ist of January, 1986 which is the date from which the relevant Rule has been made effective by sub- 4 rule (2) of Rule 1. Leaned counsel appearing on behalf of the petitioners further contends that the earlier promotion granted to them from the date as has been described in Annexure-1 itself should be the actual date of their promotion as per the Rules. On the other hand, learned counsel appearing on behalf of the State submits that sub-rule (1) of Rule 5 clearly stipulates the required educational and training qualifications and minimum tenure of service for promotion in Grade-3. If the incumbent is trained graduate, then he should have rendered 12 years of service in Grade-2 and if Matric trained, then the minimum tenure of service should be 18 years. Thus, learned counsel submits that the decision taken vide Annexure-1 is in accordance with law as the Grade-2 scale was not in existence prior to Ist of January, 1986 as the same has also come into existence by the Rules concerned itself. For granting benefit to the employees, the Rules which have come into force in the year 1993 have been made effective from Ist January, 1986. Learned counsel drew attention of this Court towards Annexure-1, wherein it is stated that the Director, Primary Education vide his letter dated 19.12.1996 has also clarified that Grade-2 pay scale has come into 5 existence only from 01.01.1986 itself. Thus, for getting such benefit of promotion in Grade-3, the petitioners who are Trained Graduates should have at least 12 years of tenure of service and those who are Matric Trained should have minimum 18 years of tenure in service from 1.1.1986 itself. Learned counsel for the petitioners could neither point out any infirmity in the aforesaid contention raised on behalf of the State nor could he point out the real dates of grant of Grade-2 scale in their favour, if that was not on 1.1.1986. As a result, to that effect this writ application fails, as it appears that since Grade-2 came into existence on 1.1.1986 itself after coming of the Rules, it is logical and reasonable as per provisions as contained in Rule 5, that the petitioners for getting promotion in Grade-3 scale should have completed minimum 12 years and 18 years for Graduate trained and Matric tained respectively of service in Grade-2 18 years of service from 1.1.1986. Thus, promotion in Grade-B has rightly not been granted from earlier date. Accordingly, this application is dismissed. However, it is made clear that in the impugned order itself, it has been stated that all the graduate trained 6 teachers were entitled to get the Grade-3 scale from 1.1.1998 Thus, it should be verified within six weeks from the date of receipt or production of this order as to whether any recovery has been made in excess. If the same is found to be made in excess then that should be immediately refunded back to the petitioners within three months from the date of such verification. If the same is not refunded to them within the period aforesaid, the petitioners would be entitled for interest upon it at the rate of 8 per cent per annum. Sanjay-II ( Dr. Ravi Ranjan, J)