IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.10175 of 2002 DEVENDRA KUMAR, son of late Govind Pandey, resident of village Mehtrawan, P.S. Chandi, District Nalanda, posted as Headmaster, Rajkiya Balak Middle School, Lohiya Nagar, Patna, at present Assistant Teacher, Nav Adarsh Middle School, Chand Mari Road, Patna … Petitioner Versus 1. THE STATE OF BIHAR 2. The Commissioner cum Secretary, Department of Education Human Resources Department, Bihar, Patna 3. The Director, Primary Education, Bihar, Patna 4. The District Magistrate cum Chairman, District Education Establishment Committee, Patna 5. The Deputy Development Commissioner, Patna 6. The District Superintendent of Education, Patna 7. The Deputy Director, Primary Education, Bihar, Patna … Respondents ----------- 3. 24.6.2010 Heard Mr. Devendra Kumar Sinha, learned Senior counsel for the petitioner and the learned counsel for the State. The grievance of the petitioner as can be better appreciated by reading relief in this writ application appears to be as follows: “I. For quashing of order dated 10.5.2001 passed by respondent no.3 whereunder and whereby representation filed by petitioner for promotion has been rejected. II. For a direction to grant promotion to the post of Headmaster. III. For a direction to grant scale of B.A. trained with effect from 2 1972. IV. For payment of salary for the period of 1.1.1992 to 31.12.1997. V. To make all differences of payment from 1972.” Mr. D.K.Sinha, learned senior counsel for the petitioner, would submit that the authority while passing the impugned order dated 10.5.2001 has totally misdirected himself in mixing up the case of the petitioner with the Science teachers, inasmuch as in the year 1972 from which period the petitioner is claiming B.A. trained scale of pay there was no such bifurcation of Science teachers and Arts teachers for the purposes of grant of graduate trained scale of pay. He would, therefore, submit that the rejection of the case of the petitioner on the ground that 23 of them were Science teachers and as such, their seniority could not be compared for considering the case of the petitioner for grant of graduate scale of pay is totally based on a misconceived premises. In this context he has referred to the circular of the State Government dated 10.7.1969 to contend that from the same it would be clear 3 that there was no classification of promotion on graduate trained scale of pay on the basis of Science teacher/ Arts teachers. As with regard to second part of the grievance of non-payment of salary Mr. Sinha would submit that the petitioner though had joined on the post of Headmaster in Rajkiya Balak Madhya Vidhyalaya, Lohianagar and had also submitted his joining on 26.12.1991 but his payment of salary was not made for the period 1.1.1992 to 31.12.1997 and the rejection of such claim by the order of the authority dated 8.5.2006 seems to be absolutely incorrect. Counsel in this regard has also referred that the said order being one passed during the pendency of the writ application the petitioner has also assailed the same by filing a supplementary petition. This Court would find that initially the writ petitioner had moved this Court in C.W.J.C.No. 5851/1998 with part of same grievance relating to grant of B.A. trained scale of pay. This Court had directed the Director, Primary Education, to 4 examine the grievance of the petitioner and in fact by way of compliance of the aforesaid direction the impugned order in this case dated 10.5.2001 has been passed. From the said impugned order it becomes clear that the petitioner’s claim for grant of graduate trained scale of pay was based on solitary ground that 24 teachers allegedly junior to him were granted such graduate trained scale of pay. The authority had thereafter obtained a report from the District Superintendent of Education and had found that out of 24 named by the petitioner 23 of them belong to Science category as is set out in detail of 23 persons. The petitioner has not controverted that 23 out of 24 named by him were actually from Science faculty. Once this aspect is admitted there would be no difficulty in rejecting the case of the petitioner as with regard to the grievance of his discrimination against those 23 Science teachers, inasmuch as right from the beginning the pay scale of the teachers in Bihar had classified distinction of either 5 B.A. trained scale of pay or B.Sc. trained scale of pay. In fact when the post of graduate trained scale of pay also came into existence and was implemented for the school teachers the classification for science teachers and Arts teachers was always in vogue. Reliance placed by the counsel for the petitioner on the circular dated 9.2.1966 seems to be wholly misplaced, inasmuch as the same only talks of mode of appointment on account of availability of suitable number of teachers in service. The circular in fact only at that point of time had envisaged that no fresh appointment could be made if the school had already qualified teachers or the teachers who had enhanced their qualification during their service. Thus, in the opinion of this Court, the reliance placed by the petitioner on the aforesaid circular dated 9.2.1966, therefore, is absolutely misconceived and cannot be used to assail the impugned order passed by the Director, Primary Education. Once this aspect becomes clear the case of discrimination of the petitioner as against 6 23 of them automatically fails. The 24th persons named by the petitioner being Satyanand Dwivedi the authority has also considered that aspect by giving following reasons: ^^tgka rd dzekad&9 Jh lR;kuan f}osnh] lgk;d f'k{kd] ok.h eafnj e/; fo|ky;] jktoa'khuxj] iVuk ds ojh;rk esa rqyuk djus dk iz'u gS bl laca/k esa vafdr dguk gS fd Jh f}osnh dks rRdkyhu ftyk f'k{kk v/kh{kd] iVuk Mk0 izse 'kadj JhokLro }kjk Lukrd dyk izf'kf{kr dk osrueku fcuk dksbZ izfdz;k viuk;s gh Lohd`r dj fn;k x;k Fkk ftls LFkkiuk lfefr ds fu.kZ;kuqlkj dk;kZy; i=kad 2537 fnukad 24-6-92 }kjk jn~n dj fn;k x;k ijUrq fQj Hkh Jh f}osnh osrueku izkIr djrs jgsA rRi'pkr dk;kZy; ds i=kad 2936 fnukad 7-8-85 }kjk vf/kd yh x;h jkf'k ds olqyh dk vkns'k fn;k x;k] ftlds fo:n~/k oknh }kjk LoRookn la[;k 120@95 ekuuh; O;ogkj U;k;ky; esa nkf[ky fd;k x;k ftlesa fu"ksKk ij jksd yxkrs gq, ;FkkfLFkfr cuk;s j[kus ds vkns'k ds vUrxZr ch0,0 izf'kf{kr dk osru izkIr djrs jgs ijUrq fnukad 29-9-2000 dks ekuuh; U;k;ky; }kjk fu"ksKk ls jksd gVk yh x;h] rnuqlkj dk;kZy; Kkikad 8069 fnukad 30-12-2000 }kjk iqu% vf/kd jkf'k dh okilh dk vkns'k fuxZr djrs gq, eSfVzd izf'kf{kr ds osrueku esa Hkqxrku dk vkns'k fn;k x;kA vr% Jh f}osnh dk mnkgj.k isl djus dk oknh dk nkok Hkh orZeku le; esa fujk/kkj lkfcr gks tkrk gSA ftyk f'k{kk v/kh{kd] iVuk ds izfrosnu ds vuqlkj Jh nsosnz ls duh; dyk dksfV ds f'k{kd dks muls iwoZ izksUufr ugha nh x;h gsa vr% bl vk/kkj ij nsosUnz dqekj ds vH;kosnu dks vLohd`r fd;k 7 tkrk gSA** Therefore, it becomes clear that Satyanand Dwivedi’s promotion was also cancelled and he was also subjected to recovery which could no longer be used as precedent much less as a plea of discrimination by the petitioner. In that view of the matter, the first part of the grievance with regard to grant of graduate pay scale from 1972 has no substance and the same has to be rejected by affirming the impugned order passed by the Director, Primary Education dated 10.5.2001, as contained in Annexure 11 to this writ application. The remaining part of the grievance of the petitioner with regard to payment of salary for the period 1.1.1992 to 21.12.1997 has also no valid justification, inasmuch as the authority has in this regard in the order dated 8.5.2006 held as follows: iwoZ esa rRdkyhu ftyk f'k{kk v/kh{kd] iVuk ds Kkikad 10796 fnukad 03-09-91 ds }kjk Jh dqekj dks 01-07-72 ls vfu;fer <ax ls ch0,0 izf'kf{kr dk osrueku Lohd`r djrs gq, jk0 e0 fo0 flikjk vapy ijlk ls jk0 e0 fo0 yksfg;kuxj] egsUnzq iVuk esa iz/kkuk/;kid ds in ij 8 inLFkkfir fd;k x;k] ftls ftyk f'k{kk LFkkiuk lfefr dh cSBd fnukad 13-06-92 es fy, x;s fu.kZ; ds vuqlkj dk;kZy; Kkikad 2539 fnukad 29-06-92 }kjk fujLr dj fn;k x;k] rFkk vfu;fer izksUufr izkIr f'k{kdksa dks vius ewy dksfV ds osrueku eas ewy fo|ky; esa ;ksxnku djus dk vkns'k fn;k x;kA mDr vkns'k dk vuqikyu Jh dqekj }kjk ugha fd;k x;kA Jh dqekj ds }kjk ;g nkok fd;k tk jgk gS fd os e/; fo|ky; yksfg;kuxj esa dkZjr jgs gS rFkk vyx mifLFkfr iqfLrdk ij mifLFkfr ntZ fd;k x;k gS] ftldh vf/kdkfjd ekU;rk ugha nh tk ldrh gSA mijksDr vafdr rF;ksa ls Li"V gksrk gS fd Jh dqekj foHkkxh; vkns'k dk mYya?ku djrs gq, rFkk LosPNkpkfjrk dk ifjp; nsrs gq, vius ewy fo|ky; esa ;ksxnku ugha fd;sA vLrq Jh dqekj ds tuonh 92 ls fnlEcj 97 rd ds osru Hkqxrku lEcU/kh nkok dk dk;Z ugha rks osrnu ugha ds fln~/kkUr dks viukrs gq, vLohd`r fd;k tkrk gS] ijUrq pwafd Jh dqekj lsok fuo`r gks x;s gS bl fy, mDr vof/k dks fcgkj lsok lafgrk ds fu;e 236 ds vUrxZr vlk/kkj.k vodk'k dh Lohd`r iznku djrs gq, lsok fofu;fer dh tkrh gSA** Once this aspect of the matter becomes clear from the reading of the order itself that the petitioner did not work for a single day in between January, 1992 to December, 1997 it would be very difficult to sustain such claim of payment of salary for the period in which the petitioner had not done any work. The reliance placed by the petitioner for pressing such claim of salary 9 on the report of the Sub-divisional Education Officer dated 31.12.1997 is also wholly misplaced, inasmuch as the event of January, 1992 to December, 1997 onwards could not have been made subject matter of such self serving report of the Area Education Officer dated 31.1.1996 and infact had nothing to do with the payment of salary of the petitioner. More over the question as to whether the petitioner had worked in the aforementioned period is a question of fact and when the petitioner has not been able to produce any documentary proof with regard to his such working this Court would not accept the oral submission of the counsel for the petitioner that since the joining of the petitioner was not accepted he would be deemed to have discharged the duty in the transferred school. This Court therefore also does not find any merit in the second part of the submission with regard to payment of salary of the petitioner. In fact the authorities were quite liberal that they having noted the petitioner’s continued absence for more than five years had only condoned it by treating it as an extra- 10 ordinary leave, inasmuch as that by itself could have caused a break in service of the petitioner making him ineligible for grant of any pension by way of forefeiture of past service. Now that the authorities have granted extra-ordinary leave the petitioner should be thankful to them because he can get retirement benefit. In that view of the matter, this Court does not find any merit in this application and accordingly, it is dismissed. (Mihir Kumar Jha,J.) Surendra/