IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.485 of 2003 SATYENDRA KUMAR, Son of Late Kapildeo Sharma, resident of village Sonwa Post Office Sonwa, Police Station Ghoshi, District Jehanabad, presently posted as Physical Trained Assistant Teacher at Primary School, Panchwai, Disrict Jehanabad. Versus 1.THE STATE OF BIHAR through Secretary, Primary Education, Old Secretariat, Patna. 2.Director, Primary Education, Bihar, Patna 3.Regional Deputy Director of Education, Gaya. 4.District Superintendent of Education, Jehanabad. 5.District Education Officer, Jehanabad. ----------- 3 02.07.2010 Heard counsel for the petitioner and counsel for the State. Prayer of the petitioner in this writ application reads as follows:- “(a)Issuance of a writ/order/direction in nature of certiorari quashing the order dated 23.5.02 of Director Primary Education (Annexure-8) contained in Memo NO.960 dated 10.6.2002. (b)Issuance of writ, order/direction in the nature of mandamus commanding the respondent (i)To pay the scale of trained teacher and other allowances applicable to trained teacher from the date of appointment to the petitioner. (ii)To pay the arrear of salary. (iii)To pay the amount of interest at the rate of 18% over all dues till the date of actual payment along with cost of litigation, throughout.” The long and short of this case is that the petitioner, a teacher in Physical Education, claims payment of his salary in the matric trained scale of pay. The respondents have filed their counter affidavit wherein it has been stated as follows:- “That in reply to averments made in para 8 of the writ petition, it is submitted that there is no 2 provision to pay trained scale to teachers given Certificate in Physical Education (C.P.Ed.). The petitioner was appointed as physical teacher on matric untrained scale on 20.5.87 vide Annexure-2 of the writ petition. The appointment letter Annexure-2 of the writ petition clearly shows that the petitioner was appointed on matric untrained scale. The Answering respondent further stated that para 3 of appointment letter (Annexure-2 of the writ petition) categorically stipulates that the petitioner will take two years teacher training within two years of appointment. That in reply to averments made in para 10 of the writ petiion, it is submitted that the petitioner’s grievance raised in this writ application can not be redressed because earlier the petitioner has already raised his grievance in C.W.J.C. No.11171/01 which was disposed of by this Hon’ble Court with the observation that the petitioner may raise his claim by making a representation before the Director, Primary Education and the Director, Primary Education will examine the matter in the light of the orders relied upon by the petitioner and pass an appropriate and speaking order on his representation. The Director Primary Education disposed of the representation of the petitioner (Annexure-8 of the writ application) rejecting the claim of the petitioner. That in reply to para 12 of the writ application it is stated that the orders of this Hon’ble High Court as contained in Annexure-5, 5/A and 5/B respectively has been discussed in a subsequent Judgment of this Hon’ble Court in C.W.J.C. No.5947/94 with analogous C.W.J.C. No.4603/94 passed on 27th June, 1995, the Hon’ble Court in the aforesaid Judgment has specifically stated that relying on the Division Bench Judgment relating to Project Schools in C.W.J.C. No.10397/92 and analogous cases disposed of on 1.5.95, that teachers in Physical Education not possessing the requisite Certificate, Diploma or Degree in education cannot be said to be trained teachers are not entitled to the scale of trained teachers they require the requisite qualification. In the present case the petitioner was appointed as a matric untrained scale vide Annexure-2 of the writ application, subsequently after acquiring training is getting matric trained scale. Hence the claim of the petitioner is not tenable and is fit to be dismissed. That in reply to averments made in para 13 of the writ petition, it is humbly submitted that in the light of order passed by the Hon’ble High Court, Patna in C.W.J.C. No.11171/01, the Director (Primary Education) has already decided and disposed of the 3 matter which is Annexure-8 of this writ petition. Hence the claim of the petitioner is fit to be dismissed.” Let it be noted that a copy of the counter affidavit was served on the petitioner way back on 10.5.2006 but there is no rejoinder to the same and therefore the facts mentioned in the counter affidavit will be deemed to have been admitted by him. In view of the fact that the respondents have fully explained the admissibility of the trained scale of pay to a teacher of Physical Education only on completion of two years Teachers Training Course and the petitioner admittedly at the time of his appointment was not possessing such qualification he would not be entitled for such payment of trained scale of pay from the date of his appointment. In fact the order of appointment of the petitioner was itself very clear in this regard. Moreover, the respondents in their counter affidavit have also explained that after the petitioner had completed two years Teachers Training Course he has been given and in fact also getting the matric trained scale of pay. That being so, there would be hardly any scope for interference by this Court either in the impugned order which was passed on remand by this Court or in terms of the judgment referred to in the counter affidavit declining to grant such benefit of trained scale of pay to a diploma holder (C.P.Ed) teacher of Physical Education. That being so, this application is wholly misconceived 4 and is accordingly dismissed. Abhay Kumar ( Mihir Kumar Jha, J.)