IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.8221 of 2007 Anirudh Roy Arbind, son of late Mahabir Roy, resident of village Narhan, P.S. Bibhutipur, District Samastipur … Petitioner Versus 1. The State Of Bihar 2. The Commissioner cum Secretary, Human Resources Department, Govt. of Bihar, Patna 3. The Director, Secondary Education, Govt. of Bihar, Patna 4. The District Education Officer, Begusarai 5. The District Education Officer, Samastipur … Respondents ---------------------------------- 2. 12.10.2011 Heard counsel for the parties. Learned counsel for the petitioner assailing the order dated 3rd January, 2005 passed by the Director, Secondary Education, has submitted that the petitioner on account of his appointment as a Post Graduate Teacher in the school on 15.4.1972 is entitled to get pay scale of a Post Graduate Trained Teacher with effect from 31.10.1975, the date on which he had passed the Teacher Training Examination. He has accordingly submitted that the impugned order passed by the Director, Secondary Education, is unsustainable on the face of record. Mr. Murari Narain Choudhary, learned counsel for the petitioner, in this regard has also explained that the school in which the petitioner was appointed in the year 1972 was a private school which had received permanent recognition by Madhyamik Shiksha Board in the year 1976 and ultimately was taken over as a Nationalized High School with effect from 2.10.1980. He has also relied on the circular of the State Government dated 24.3.1967 to contend that every teacher having Post Graduate qualification was entitled to get salary either of a Post Graduate Teacher or at least 2 B.A. Trained Teacher even if he was an untrained teacher. He has also placed reliance on the clarificatory order of the Education Department dated 12.11.1970 in which a Post Graduate in Mathematics was treated to be entitled for being appointed against Post Graduate Teacher for Science subject. He has accordingly submitted that when the petitioner was also a Post Graduate in Mathematics, the benefit of Post Graduate trained scale to him was ipso facto available at least from the date the petitioner became a trained teacher i.e. 31.10.1975. In this case a counter affidavit has been filed in which it has been explained that the order passed by the authority in pursuance of an earlier direction given by this Court does not suffer from any error, inasmuch as there was no proof of the petitioner being ever appointed on one of the two post of Post Graduate Teachers. Learned counsel for the State in this regard has clarified that mere possession of qualification would not be an answer to the power vested in the Managing Committee to appoint Post Graduate Teachers as only two of them could be appointed either as a Post Graduate Science and Post Graduate Arts teacher. He has further explained that as the school was recognized for the first time on 21.5.1974 and thereafter the services of the teachers were screened, the petitioner on account of his being untrained Post Graduate was only given the pay scale of a Trained Graduate Teacher vide Board’s letter No. 37415 dated 6.10.1976 and ultimately his services were also taken over only as a Graduate Trained Teacher when the school was nationalized with effect 3 from 2.10.1980. He would accordingly submit that the petitioner was never entitled to get pay scale of a Post Graduate Trained Teacher and the reliance placed on the clarificatory letter of the State Government dated 12.11.1970 would not cover the case of the petitioner. In the considered opinion of this Court the petitioner has been making repeated efforts to get the aforementioned relief. Initially he had approached this Court by filing C.W.J.C.No. 2819/1981 which was disposed of on 8.7.1986 with a direction to the Director, Secondary Education, to consider the case of the petitioner and pass an appropriate order. The Director, Secondary Education is said to have passed an order on 22.9.1988 by which his services were recognized only from the date of the order passed by Madhyanik Shiksha Board i.e. 6.10.1976. The petitioner’s services for the period 15.4.1972 to 5.10.1976 having been not given any benefit when the petitioner had challenged the said order of the authority by filing a fresh writ petition, C.W.J.C.No. 8433/1994, this Court also had rejected such a prayer by recording as follows: “So far as claim regarding approval of service from 15.4.1972 is concerned, in my view, this grievance cannot be considered at this stage for the reason that the matter was already considered in the year 1988 and the petitioner did not challenge the same and against the said order review petition before the Director and the Director has rejected the same after looking into the relevant materials. Accordingly, this grievance of the petitioner is rejected.” 4 Once the petitioner’s services were not recognized for the period 15.4.1972 to 5.10.1976 he would not be entitled to count his services for any purpose and since that order passed by the learned Single Judge in C.W.J.C.No. 8433/1994 has acquired finality by its affirmance in L.P.A.No. 1088/1995, there would be no question now for the petitioner to raise the issue of his any entitlement for grant of M.Sc. trained pay scale with effect from 31.10.1975, the date on which his services as a teacher of the school was itself not recognized. As a matter of fact the authority had found the petitioner for grant of Graduate trained scale only with effect from 22.4.1980 as is recorded in the same order dated 3.8.1995. In the said order, however, it was mentioned that if on verification the petitioner’s result of B.Ed. Examination was found to have been published with effect from 30.10.1975 his Graduate trained scale would be shifted from 22.4.1980 to 30.10.1975. Once this aspect becomes clear that the Graduate trained scale of the petitioner was to be given only from the date of his acquiring training it would become clear that the appointment of the petitioner was treated to be only as an Assistant Teacher in the Graduate trained scale. It has to be kept in mind that in every recognized school even before its being taken over there were post of Post Graduate teacher and Graduate Trained Teacher. As noted above, there were only two post of Post Graduate Teachers and the Managing Committee had been vested with the power to make such appointment against either of the post. 5 In the case of the petitioner there is specific finding of the authority that the Managing Committee had never appointed him as a Post Graduate trained teacher. There is also nothing on record to contradict this finding and at least the petitioner himself has not produced his appointment letter or resolution of the Managing Committee of the year 1972 when he was said to have been appointed as an Assistant Teacher in the Post Graduate pay scale. It has to be kept in mind that untrained teachers though were capable of being appointed upto 1973 by way of exception, the Managing Committee had to make such an exception by passing a specific order. Merely because the petitioner was a Post Graduate in Mathematics and untrained will not mean that the Managing Committee had appointed him in Post Graduate trained scale. To that extent the power of the Managing Committee by way of enabling clause of the Government circular dated 24.3.1967 itself provided as follows: “6. Government have been further pleased to agree to the provision of 2 posts of trained teachers holding Post Graduate, Honours Degree, in High Schools, one of which may go to a teacher of Science and the other to a teacher of Humanities, Arts, Commerce or Languages. In Schools where there are at present no teachers holding Post Graduate or Honours Degree in Science, Existing M.As may be appointed against the sanctioned post of M.Scs. Untrained M.As. or M.Scs. may also be appointed against these posts for the present but in that case they will be entitled only to adhoc increments in the scale of pay for the trained 6 graduate teachers subject to the general decision about untrained teachers.” The aforementioned portion of the Government circular would, therefore, leave nothing for speculation that there had to be a conscious decision for appointment of the petitioner as a Post Graduate untrained teacher. Nothing of the sort, therefore, has been produced by the petitioner before the authority and that is how in the impugned order a finding of fact was recorded in following terms:- ^^vkosnd }kjk Lor% Lohdkj fd;k x;k gS fd fon~;ky; izca/k lfefr }kjk budh fu;qfDr vizf'kf{kr f'k{kd ds :i esa dh xbZ gS rFkk 31-10-75 dh izf'kf{kr gq,A oslh ifjfLFkfr esa foHkkxh; izko/kku ds vkyksd esa vizf'kf{kr f'k{kd dh u rks LukrdksRrj izf'kf{kr ds in ij fu;qDr djuk Fkk vkSj u gh fon~;ky; izca/k lfefr }kjk budh fu;qfDr visf{kr ;ksX;rk ds vk/kkj ij mDr in ij dh xbZA lfpo] fcgkj ek0 f'k{kk cksMZ ds }kjk 37415&18] fnukad 6-10-76 ds voyksdu ls gh Li"V gS fd vkosnd dks lgk;d f'k{kd ds :i esa ekU;rk nh xbZ gS rFkk budh ;ksX;rk ek= ,e0,l0lh0 vafdr gSA mi;qZDr of.kZr rF;ksa ls Li"V gS fd foHkkxh; i=kad 3527] fnukad 12-11-70 easa Li"V :i ls vafdr gS fd mif"kr ;ksX;rk okys f'k{kd dh fu;qfDr LukrdksRrj izf'kf{kr ds in ij dh tkuh gSA tc fo|ky; izca/k lfefr }kjk budh fu;qfDr mDr in ds fo:n~/k ugha dh xbZ gS rc oslh fLFkfr esa bUgsa izf'kf{kr gksus dh frfFk ;Fkk 31-10-75 ls LukrdksRrj izf'kf{kr in ds fo:n~/k fu;qDr ekuk tkuk fu;ekuqdqy ugha gS ,oa rnuqlkj mDr in dk osrueku Hkh fn;k tkuk fu;e laxr ugha gSA vr% vkosnd dks LukrdksRrj izf'kf{kr AfoKkuA ds in ij fu;qDr ekuus ,oa rnuqlkj mDr osrueku nsus dk oknk foHkkxh; i= la[;k&3527] fnukad 12-11-70 ds vkyksd esa Hkh fopkj.kh; ugha gksus ds dkj.k buds vH;kosnu dks Lohd`r fd;k tkrk gS rFkk bl dk;kZy; }kjk fuxZr vkns'k la[;k&493 Afo/khA fnukad 26-8-03 bl gn rd la'kksf/kr ekuk tk;A** 7 The aforementioned findings of fact could not be successfully assailed before this Court by the learned counsel for the petitioner and as noted above, the petitioner has not been able to produce his order of appointment nor has he produced any material to show that he was appointed by the Managing Committee in the year 1972 as a Post Graduate untrained teacher. The submission of Mr. Choudhary that there is a statement in the writ petition to this effect may not be enough, inasmuch as even in a writ petition a fact which is capable of being proved by a document will have to be brought on record as was held by the Apex Court in the case of Bharat Singh & ors. vs. State of Haryana & ors., reported in AIR 1988 SC 2181. That being so, this Court would find no merit in the contention of the learned counsel for the petitioner that the petitioner’s appointment was initially made as a Post Graduate untrained teacher and that he would become entitled for grant of such pay scale with effect from 1976. The petitioner in fact has already retired from service. Since the petitioner was given higher pay scale of the Post Graduate teacher contrary to the Government provisions and the Rules which led to its cancellation by an order dated 30.5.2000 and such recovery was stayed by an order dated 1.9.2003 in C.W.J.C.No. 9969/2000, this Court would direct the Director, Secondary Education, to look into the aspect as to whether there was any fraud or misrepresentation on the part of the petitioner in claiming the Post Graduate trained scale of pay. If the Director, Secondary Education would find that the petitioner was 8 granted the Post Graduate trained scale of pay by the competent authority without there being any misrepresentation or fraud on the part of the petitioner, he would pass a fresh order for scraping the recovery part in the order dated 30.5.2000. In other words in absence of fraud or misrepresentation on the part of the petitioner any amount already paid to the petitioner as a Post Graduate trained teacher till 30.5.2000 will not be recovered but on and after 30.5.2000 the petitioner will be treated to be only a Graduate trained teacher and thus entitled for all his service benefit including post retirement benefit only as a Graduate trained teacher. With the aforementioned observation and direction, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/