IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.1023 of 2002 Bijay Narayan Singh, Son of Late Jagdamba Prasad Singh, Resident of Village Pawana, P.S. and District Supaul at present posted as Assistant Teacher, Middle School- Kapasia, P.S. Patarghat, District Saharsa. -------- Petitioner Versus 1. The State of Bihar. 2. The Secretary, Human Resources Department, Government of Bihar, Patna. 3. The District Magistrate, Saharsa. 4. The Deputy Development Commissioner, Saharsa. 5. The District Education Officer, Saharsa. 6. The Education Officer, Saharsa-cum-Regional Deputy Director of Education, Kosi Division, Saharsa. 7. The District Superintendent of Education, Saharsa. 8. The Regional Education Officer, Saharsa. 9. The Block Education Extension Officer, Patarghat, District Saharsa. 10. The Headmaster-cum-Joint Disbursing Officer, Middle School, Kapasia. -------- Respondents ----------- 7 05.07.2010 No one appears on behalf of the petitioner. Counsel for the State is present. The prayer of the writ petitioner in this application reads as below:- “1. That the present writ application is for issuance of a writ of „Mandamus‟ commanding the respondents 1 to 10 for quashing Annexure-1 letter no. 680 dated 9.4.2001 issued by the District Superintendent of Education, Saharsa, the respondent no.7 by which the promotion given to the petitioner vide office order no. 1144 dated 4.9.1996 has been withdrawn the consequence of which the B.A. trained scale given to the 2 petitioner with effect from 9.3.1993 alongwith other teachers has been ordered to be withdrawn and the excess payment made after the promotion has been ordered to recover from the teachers including the petitioners in hundred equal installments out of the 81 Assistant teachers shown in the list, the petitioner was placed at serial no. 65 and was given B.A. trained scale with effect from 1.1.1971 which has been withdrawn with effect from 9.3.1993 without showing any reason for doing the same and without giving the petitioner an opportunity of show- cause in the matter. The order itself states that the order dated 9.4.2001 itself contemplates with seventeen similarly situated teachers like petitioner filed CWJC No. 6800/1997 Budhi Nath Jha and others Vs. State of Bihar and other and C.W.J.C. No. 6332 of 1997 Kameshwr Chaudhary and others Vs. The State of Bihar and others in which the Hon‟ble High Court, Patna had stayed the operation of the order for recovery of the paid amount after promotion to the teachers. The order further reads that in the meeting of District Education Establishment Committee dated 23.1.2001 in view of the M.J.C. application filed in the Hon‟ble High Court and after 3 considering the situation it has been decided that the promotion of teachers given on 30.6.1996 in the B.A. trained Scale is illegal as it is stated by the District Establishment committee on 30.6.1996 ordered to be regularize and given effect to only those teachers who have filed the writ application against the aforesaid order they will be exempted from the action of excess money paid to them will not be recovered from them but those teachers who have not filed writ application before this Hon‟ble Court against the aforesaid order their promotion will be cancelled while given effect to the decision dt. 30.6.1996 of the District Education Establishment Committee, Saharsa and the amount paid to them will be recovered from them in hundred equal installments. The order contained regarding the list of eighty one (81) teachers in the district of Saharsa in which at serial no. 65 the name of the petitioner has been shown and is given promotion as early as on 9.3.1993 has been withdrawn and his service has been sent back in the original scale of B.A. Trained with clear order that excess amount paid after promotion will be recoverable in hundred equal installments alongwith other similarly situated 4 teachers shown in the list. The issuance of the order dated 9.4.2001 (Annexure-1) without any show-cause and without giving an opportunity to the petitioner to be heard in the matter is illegally, unconstitutional and violative of the principle of „Natural Justice‟ and fair play because respondents have no authority to make recovery with retrospective effect of the amount withdrawn by the petitioner after his regular promotion in the B.A. trained scale with effect from 9/3/1993 and accordingly service book entry was also made, therefore, withdrawal of the same with recovery his also against equity and good conscience and natural Justice, and therefore fit to be quashed by this Hon‟ble Court as being violative of the principle of Articles 14, 16, 19, 21, 39(d), 300(A) and 311 of the Constitution of India. The present writ application is also for a direction to the respondents 1 to 10 not to make any recovery from the salary already paid to the petitioner in the scale of B.A. trained teachers with effect from 9.3.1993 it is decided on 30.6.1996 by the District Education Establishment Committee, Saharsa as mentioned in Annexure-1 with a further direction to make 5 payment to the petitioner his full salary after staying the implementation of Annexure-1 dt. 9.4.2001 in the scale of B.A. 1640- 40-60-2000 E.B.-60-2600-75-2900 in which on 9.3.1993 petitioner was fixed as rupees 2060 in the B.A. trained scale and was given one increment on 9.3.1994 that the paid rupees 2060 and on 9.3.1995 it was fixed at rupees 2180 only. The petitioner, has been paid his salary regularly till February, 2001 but payment of his monthly salary has been stopped in view of Annexure-1 dated 9.4.2001 from Ist March till date and therefore petitioner along with his family has been put on the verge of starvation because do not have any source of income for his livelihood. The payment of salary is not being made because the petitioner has not filed any writ application earlier against the aforesaid order no. 680 dated 9.4.2001 as will be evident from perusal of the Annexure-1 itself but those who have already filed writ application earlier against the impugned order dated 9.4.2001 Annexure-1 have been kept immune from the implementation of the order under the present facts and circumstances, the petitioner has been compelled to file the present writ application against Annexure-1 6 so that he may get his full salary after 1st March, 2001 which has wrongly been withheld by respondents no.1 to 10 while giving effect to Annexure-1 dated 9.4.2001 although petitioner is continuing in service and has been doing the duty regularly till date as Assistant teacher in the Middle School, Kapasia, Patarghat in the district of Saharsa. The stoppage of the salary from Ist March, 2001 with the order of recovery of the payment of salary by way of promotion in the trained scale after 9.3.1993 in hundred equal installments may kindly be stopped and after issuance of command by way of „Mandamus‟ the respondents no.1 to 10 who may be commanded by the issuance of present writ application not to implement letter no. 680 dated 9.4.2001 (Annexure-1) in the case of the petitioner also till the disposal of the present writ application and respondents no.1 to 10 may further be directed to pay the petitioner his full salary amount in the aforesaid scales without any further delay on monthly basis during pendency of the present writ application as is being paid to those similarly situated Assistant teachers who have filed writ applications earlier before this Hon‟ble Court challenging the same order no. 680 7 dated 9.4.2001.” In absence of the petitioner and also a counter affidavit filed by the respondents, this Court would find it difficult to decide the question in hand which is purely a question of fact. In that view of the matter, if the petitioner would approach the authority and would demonstrate that not only his earlier promotion given on B.A. Trained Scale of Pay was as per the procedure laid down and in terms of the Government Rules and any junior to him has still been allowed to retain such B.A. Trained Scale of Pay, the authority would pass a fresh order without being prejudiced by the impugned order passed earlier. With the aforementioned observations and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)