IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.12070 OF 2007 ARUN KUMAR, S/O BINDESHWARI PRASAD YADAV, R/O VILLAGE & P.O HARDI, P.S SUPAUL, DISTRICT SUPAUL. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR. 2.DIRECTOR, PRIMARY EDUCATION HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 3.THE DISTRICT SUPERINTENDENT OF EDUCATION, SUPAUL. ………………………RESPONDENTS. ----------- For the Petitioner : Mr. B.N.P. Singh, Advocate For the State : S.C.-15 ---------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (04.11.2011) Mihir Kumar Jha, J. Heard counsel for the petitioner. No one appears for the State. The petitioner in this writ application has sought a direction for being granted matric trained pay scale from 25.05.1985, the date on which he was first appointed in Government service. Counsel for the petitioner has explained that the petitioner had already passed the examination of certificate in Physical Education, C.P.Ed course from Bihar School Examination Board, Bihar, Patna in the annual examination held in the year 1978, but when the petitioner was appointed in Government service in the year 1985 w.e.f 25.05.1985, he was granted only the pay scale of untrained matriculate. In this context, he has relied on an order of this Court dated 10.01.1995 2 passed in C.W.J.C No. 8481 of 1990 in the case of Jagnandan Singh vs The State of Bihar and Ors to contend that in a similar case this Court had decided to grant matric trained scale of pay to Physically trained teachers alike the petitioner. In this case there is no counter affidavit nor even counsel for the State has appeared to oppose the prayer of the learned counsel for the petitioner. This Court, however, has heard counsel for the parties and after perusing the materials on record is satisfied that the petitioner will not be entitled for payment of his salary in the Matric Trained Pay Scale. The payment of salary in a particular pay scale is a term of condition as incorporated in the order of appointment. The petitioner very conveniently and in fact very cleverly did not produce the order of his appointment by annexing it in the writ application. Counsel for the petitioner, however, on being asked by this Court to produce the order of appointment and the petitioner has given the cyclostyle copy of the order of appointment of the petitioner dated 25.05.1985 which by itself would go to show that the appointment of the petitioner was made in the Matric Untrained Trained Pay Scale of Rs. 535-765/- with a condition that the petitioner must complete the two years teachers training course within a period of two years of his appointment and if he does so he would be given the 3 Matric Trained Pay Scale of Rs. 580-860/-. To that extent it would be necessary to quote the relevant portion of the appointment letter of the petitioner:- dk;kZy; ftyk f'k{kk] v/kh{kd] lgjlk dk;kZy; vkns'k f'k{kk foHkkx ds vf/klwpuk la[;k 307 fnukad 19 Qjojh 85 ,oa ftyk Lrj ij xfBr lfefr ds fu.kZ;kuqlkj fuEukafdr 'kkjhfjd f'k{kd ds muds uke ds lkeus vafdr fo|ky; esa eSfVzd vizf'kf{kr osrueku 535&10&645&15&690&15&765 esa 535 :0 izkjafHkd osrueku esa ;ksxnku Fkh frfFk ls fu;qfDr dj inLFkkfir fd;k tkrk gSA fo|ky; esa ;ksxnku djus ds iwoZ mik/kh{kd jktdh; lnj vLirky ls LokLFkrk izek.k i=] 'kS{kf.kd ,oa iz'kS{kf.kd ,oa vk;q laca/kh ewy izek.k i= inLFkkfir djuk vfuok;Z gksxkA vU;Fkk mudk ;ksxnku ekU; ugha gksxkA vH;fFkZ;ksa dks fu;qfDr ds nks o"kksZa ds Hkhrj nks o?khZ; f'k{kd izf'k{k.kp;kZ esa vius O;; ij ukekadu dj izf'k{kksrhZ.k gksuk vfuok;Z gksxkA ftlds fy;s izkFkfed f'k{kd f'k{kk egkfo|ky; esa LFkku lqjf{kr djk;k tk;xkA izf'k{k.k vof/k esa jkT; dks"k ls osru ns; ugha gksxkA izf'k{k.k dh vof/k esa muds fy, in lqjf{kr j[ks tk;saxasA eSfVzd@vkbZ0,0 ;ksX;rk okyks ds rgr nks o"khZ; izf'k{k.k p;kZ mRrh.kZ ds ckn ijh{kkQy izdkf'kr gksus dh frfFk ls bl vH;kfFkZ;ksa dks xzsM3¼x½ ds v0&15&860 es 580 :i;s dk izkjafHkd osru ns; gksxkA fnukad 5&7&85 ds ckn ;ksxnku Lohdkj ugha fd;k tk;sxkA Øekad vH;FkhZ dk uke ,oa irk inLFkkfir fo|ky; dk uke 1 2 3 Jh v:.k dqekj xzke &gjnhuk iz[kaM & lqikSy e/; fo|ky; fiijk vapy fiijk esa fjDr in ij 4 5 6 7 8 9 10 11 12 13 14 15 16 mifodkl vk;qDr] lgjlk g0 vLi"V ¼oh0,u0 flUgk½ ftyk f'k{kk v/kh{kd] lgjlk Kkikad 1350&60 lgjlk fnukad 25 ebZ 1985 izfrfyfi lacaf/kr 'kkjhfjd f'k{kd @ iz/kkuk/;kid@fo|ky; mifujh{kd@foi= fyfid dks lwpukFkZ ,oa vko';d dk;kZFkZ izsf"krA 4 g0 vLi"V ¼oh0,u0 flUgk½ ftyk f'k{kk v/kh{kd] lgjlk Kkikad 1350&60 lgjlk] fnukad 25 ebZ] 1985 (underlining for emphasis) As would be evidenced from the extract of the aforesaid unlived portion of the letter of appointment of the petitioner and others Physically Trained Teachers the source for their such appointment was the Government Notification No. 307 dated 19.02.1985. From the said notification dated 19.02.1985, which can be found that in the Primary School manual, it has been categorically mentioned that the appointment of Physically Trained Teachers had to be made in Matric Untrained Pay Scale. Para 7,8,9 and 10 of the said notification being relevant is quoted hereinbelow:- 7- pw¡fd bu vH;fFkZ;ksa dks 2 o’khZ; f”k{kd izf”k{k.k izkIr ugha gS vkSj ;s vH;FkhZ xzsM 3 ¼x½ ds lkekU; f”k{kd ds in ds le{k fu;qDr fd;s tk jgsa gSa] vr% bu vH;fFkZ;ksa dks eSfVªd vizf”kf{kr lkekU; f”k{kd ds fy;s fofgr osrueku 535&1-&645&15&690&n0jks0&15&765 esa 535 :i;s dk izkjafHkd osrueku ns; gksxkA 8- bu vH;fFkZ;ksa dks fu;qfDr ds 2 o’kksZ ds Hkhrj fu;fer 2 o’khZ; f”k{kd izf”k{k.k p;kZ esa vius O;; ij ukekadu djkdj ijh{kksÙkh.kZ gksuk vfuok;z gksxk] ftlds fy;s izkFkfed f”k{kd f”k{kk egkfo|ky; esa LFkku miyC/k djk;k tk;sxkA izf”k{k.k vof/k esa jkT; dks’k ls osru ns; ugha gksxkA 9- izf”k{k.k dh vof/k esa muds fy;s in lqjf{kr j[ks tk;sxsaA 10- eSfVªd@vkbZ0,0 ;ksX;rkokyksa ds fy;s fofgr nks o’khZ; f”k{kd izf”k{k.k p;kZ mÙkhZ.kz gksus ds ckn ijh{kkQy izdk”ku dh frfFk ls bu vH;fFkZ;ksa dks xzsM&3¼x½ ds ¼eSfVªd izf”kf{kr f”k{kd dk osrueku½ fy;s fofgr osrueku ¼580&10&620&15&770&n0jks0&15&860½ esa 580 :i;s dk izkjfEHkd osru ns; gksxkA** It would thus become clear that the Government had taken a conscious decision to appoint Physically Trained Teachers having the qualification of C.P.Ed, only in Matric Untrained Pay Scale as because the qualification of a certificate training course was not 5 treated to be equivalent to two years regular teachers training course required as an essential qualification for appointment on the post of a teacher in Matric Trained Pay Scale. The Government in fact had specially made a provision of their being sent to Government teachers training course for acquiring the teacher qualification of two years course and it was also made clear that until they would complete the two years teachers training course successfully they would be only paid their salary in the Matric Untrained Pay Scale. Thus the terms of appointment of the petitioner by itself would be sufficient to deny him the Matric Trained Pay Scale either from the date of his appointment or even from the present date specially when the petitioner does not claim to have undergone and completed the two years teachers training course as is also borne out from his representation filed for the first time in the year 2002 claiming Matric Trained Pay Scale (Annexure-4). The petitioner being bound by the terms and conditions of his appointment letter as quoted above cannot be allowed to claim higher pay scale of Matric Trained Pay Scale when he has not fulfilled the condition for grant of the same. The reliance placed by the learned counsel for the petitioner on the order of this Court in the case of Jagnandan Singh (supra), an unreported judgment 6 enclosed to this writ application is also misconceived. No law has been laid down therein that all Physically Trained Teachers would automatically become entitled for grant of Matric Trained Pay Scale, even if, they have not completed the two years teachers training course. Moreover, the said order proceeds on an error of record that there was no provision for Matric Untrained Teacher in Primary School/Middle School in the State of Bihar. The history of Primary Schools in Bihar would bear it out that when the Bihar Non-Government Primary Schools (Take Over) Act, 1976 came into force, the State government on 15.12.1976 had issued an order under Section-8 of the aforesaid Act, wherein, it was clarified that Matric Untrained Teachers could be appointed in absence of trained hand in Matric Untrained Pay Scale which was equivalent to Middle Trained Pay Scale. Subsequently, in the year 1982 the State Government by letter no. 8014 dated 04.09.1982 while revising the pay scale of the teachers of the Primary and Middle School had made it clear that while the pay scale of the Matric Untrained Teacher of Rs. 205-284/- would be revised to Rs. 535-765/-, the corresponding pay scale of Matric Trained Teacher of Rs. 240-396/- was to be revised to Rs.580-860/-. The said distinction of the Matric Untrained Teacher and Trained Teacher was even carried out in the next pay revision effected by the Finance Department Resolution 7 No. 602 dated 18.12.1989/ 04.01.1990 w.e.f 01.01.1986, wherein, the pay scale of Matric Untrained Teacher was raised from 535-765/- to 975-1540/- as against the Matric Trained Teacher of Rs.580-860/- to 1200-1800/-. In fact this line of distinction in the pay scale of Matric Untrained Teacher was also carried out and reiterated even in the next pay revision effected in the Finance Department Resolution No. 660 dated 08.02.1999 by granting pay scale of Rs. 3050-4590 as against the pay scale of 4500-7000/- to the Matric Trained Teacher. In view of this settled proposition the order passed in the case of Jagnandan Singh(supra) become per incurium as it has not taken into account the relevant provision of the Government decision making a clear distinction in the Matric Trained and Untrained Teachers. True it is that there was no concept of the post of their being Matric Untrained but then if a Matric Untrained Teacher were appointed as in the case of the petitioner, their pay scale had to be different and lower to the Matric Trained Teacher. This Court is conscious that in the case of such Matric Untrained Teacher who had acquired higher qualification either being intermediate or graduate, they had been granted the pay scale of Matric Trained Teacher in view of the judgment of this Court passed in C.W.J.C NO. 7103 of 1999 disposed of on 17.05.2000 (Vinay Kumar Rai and Ors Vs The State of Bihar and Ors) 8 but then the decision of the Finance Department dated 16.01.2001 will have to be still read out that the pay scale of Matric Untrained Teacher remained Rs. 3050- 4590/-. The petitioner is a simple matriculate and therefore, for him the pay scale admissible to him in terms of his order of appointment would be that of a Matric Untrained Teacher. Counsel for the petitioner would, however, submit that even if the case of the petitioner Jagnandan Singh may not be comparable on facts, inasmuch as, their date of appointments were ranging between 1982 to 1988, benefit of the Government circular referred therein dated 29.11.1980 should also be extended to the petitioner for grant of Matric Trained Pay Scale. In the considered opinion of this Court, the letter/circular dated 29.11.1980 had only envisaged appointment of Physically Trained Teachers in view of the Physical Education being made a compulsory subject in the syllabus of Primary and Middle School. That circular only envisaged that in the event of absence of trained teachers even the Physically Trained Teachers could be appointed but that circular never envisaged that the appointment of such Physically Trained Teachers would be made in the Matric Trained Pay Scale. In fact the next circular dated 17.02.1981 on the same subject was absolutely clear, wherein, while specifying 9 five per cent post of teachers for appointment of Physically Trained Teachers, it was clearly laid down that only such Physically Trained Teachers who were graduates could be given Matric Trained Pay Scale, whereas the persons possessing qualification of intermediate and matric and having completed training in Physical Education would be paid their salary in the Matric untrained Pay Scale as would be borne out from para 6 and 7 of that circular, as underlined, which reads as follows:- 6- “kkjhfjd f”k{kk esa izf”kf{kr meehnokjksa esa ls igys ch0,0 ;ksX;rk ds meehnokjksa dh fu;qfDr dh tk,A ;fn visf{kr la[;k esa ch0,0 ;ksX;rk ds mEehnokj miyC/k ugha gksa rc vkbZ0,0 ;ksX;rk ds mEehnokjksa dks ,oa mlds ckn Hkh “kkjhfjd f”k{kd dh fu;qfDr muds fy, fu/kkZfjr izfr”kr ds vk/kkj ij iwjh ugha gksrh gS rc eSfVªd ;ksX;rk ds mEehnokjksa dh fu;qfDr dh tk,A 7- “kkjhfjd f”k{kk esa izf”kf{kr ch0,0 ;ksX;rk ds f”k{kd osrueku ds fy, eSfVªd izf”kf{kr ekus tk;saxs] ijUrq mUgsa eSfVªd izf”kf{kr ds fofgr osrueku esa okf’kZd osru o`f) rc rd ugha nh tk;sxh tc rd fd os ch0,0 ;ksX;rk ds fy, fofgr ch0 ,M0 dk izf”k{k.k izkIr ugha djrs gSaA mUgsa rc rd eSfVªd izf”kf{kr osrueku dk izkjafHkd osru gh feyrk jgsxkA (underlining for emphasis) It is infact in this background that one has to also examine the next circular for appointment of Physically Trained Teachers contained in Notification No. 307 dated 19.02.1985, under which the appointment of the petitioner was made as is clearly spelt out in his appointment letter dated 25.05.1985 itself. Having thus given anxious consideration, this Court does not find any merit in the claim of the petitioner for grant of his salary in the Matric Trained Pay Scale right from the inception i.e. from 25.05.1985 the date on which he came to be appointed as a Matric untrained Teacher. 10 Counsel for the petitioner, however, insisted that several other persons like him had been granted pay scale of Matric Trained Teacher and as such he may be given an opportunity to file his representation before the Director of Primary Education for ventilation of his grievance. This Court taking into account that even in the case of Jagnandan Singh (supra) the Court had only remitted the matter to the Director of Primary Education to decide the issue for grant of Matric Trained Pay Scale would simply give liberty to the petitioner to file his self contained representation before the Director of Primary Education, who shall thereafter decide the matter relating to grant of Matric Trained Pay Scale to the petitioner strictly in accordance with law and in the light of the findings and observations arrived in this order. The Director Primary Education is expected to dispose of the representation to the petitioner within a period of six months by a reasoned and speaking order. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha, J.) Patna High Court Dated the 4th November 2011 A.F.R./Ranjan