IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12284 of 2002 1. KRISHNA KUMAR PRASAD, son of Sri Basudeo Prasad, resident of Mohalla Rikabganj, P.S. Tekari, District Gaya, at present posted as Assistant Teacher Rameshwar Middle School, Salempur Tekari, District Gaya 2. Nawal Kishore Prasad, son of Sri Bishnudayal Bhagat, resident of village Belwan, P.S. Tekari, District Gaya at present posted as Assistant Teacher in Middle School, Amra, Kouch, Gaya 3. Vijay Prasad, son of late Jawahar Prasad, resident of Mohalla Rikabganj, P.S. Tekari, District Gaya, at present posted as Assistant Teacher in Sindhuari, Kouch, Gaya … Petitioners Versus 1. THE STATE OF BIHAR 2. The Director, Secondary Education, Govt. of Bihar, Patna 3. The District Superintendent of Education, Gaya … Respondents. ----------- 3. 2.7.2010 Heard Mr. Rajendra Prasad Singh, learned Senior counsel for the petitioners and Mr. Sunil Kumar Mandal, learned S.C.15, for the State. The prayer of the petitioners in this writ application reads as follows: “This is an application for issuance of appropriate writ(s)/direction(s) quashing the order dated 15.5.2002 issued by the respondent no.3 and to direct the respondents to pay the B.Sc. trained scale to the petitioners, with effect from 16.3.1992 alongwith appropriate interest till date as well as current salary also in same scale.” 2 Counsel for the petitioners would submit that once the petitioners were appointed against the post of B.Sc. trained scale the petitioners would be automatically entitled for salary of B.Sc. trained from the date they had acquired training qualification and therefore, the impugned order dated 15.6.2002 rescinding such grant of pay scale by the District Superintendent of Education on 29.11.2001 is wholly unsustainable, inasmuch as the grounds mentioned therein with regard to verification of certificate could not have been used against the petitioners because there is no dispute that the petitioners had passed such teachers training course from the Government Teachers Training College. Counsel for the State, on the other hand, by placing reliance on the order of this Court dated 18.10.2006 in C.W.J.C.No. 4522/2006 (Raj Mohan Ray vs. State of Bihar & ors.) would submit that the petitioners themselves in paragraphs 20 and 22 of the writ application had claimed their case to be identical. In the opinion of this Court the 3 reliance placed by the counsel for the petitioners on the order of appointment for justifying grant of B.Sc. trained scale of pay itself is unsustainable, inasmuch as if the order dated 2.12.1982 appointing the petitioners in service is taken into consideration as a whole it would become clear that the petitioners at the time of appointment were untrained hand and their appointment was only made on stipend against the sanctioned vacant post of B.Sc. trained. The Education Department had notified the cadre rules according to which the initial appointment of even a trained teacher has to be made in matric trained scale of pay and therefore, he has to earn his promotion on I.A. trained scale and thereafter B.Sc. trained scale of pay. Therefore, on the basis of the order of appointment dated 2.12.1982 it cannot be said that the petitioners’ appointment was made in B.Sc. trained scale of pay even though they were untrained. There is no stipulation to that effect that moment the petitioners had acquired the qualification of training in service they would be granted B.Sc. trained 4 scale of pay. Nothing in fact can be inferred by reading Annexure 2 in this regard. As a matter of fact from the order of this Court dated 18.10.2006 it would appear that similar discrepancy was created by the then District Superintendent of Education in a large number of cases including the case of Raj Mohan Ray and this Court considering the said aspect had held as follows: “ From the relevant circular dated 18th December (Annexure-A) occupying the field at the relevant time when annexure A was passed, it has been shown by learned counsel for the State that petitioner who was getting matric trained and equivalent scale of Rs.1200-2040/- had been suddenly given a jump bypassing the senior scale of Rs.1400-2600/- which could only be given after 12 years and was placed in the scale prescribed after 12 years in senior scale laid down for trained graduate teachers i.e. Rs.1640-2900/-. It has further been submitted that even the subsequent Rules of 1993 contained in Annexure A/1 did not permit such a promotion or grant of higher scale without 5 any reason and contrary to Government decision. In the facts of the case, this court finds that the order contained in Annexure 2 in its final conclusion is fully in accordance with law and it has to be held that petitioner was wrongly granted B.Sc. trained scale of Rs.1640-2900 by Annexure 1. Learned counsel for the petitioner has relied upon a judgment of the Division Bench of this Court in the case of Vijay Kumar Singh vrs. State of Bihar, reported in 2002(3) PLJR 808, to submit that even where excess payment has been made, no recovery should be ordered or allowed unless that has been obtained in any representation or misrepresentation. A careful reading of the said Division Bench judgment shows that the Division Bench in fact took a contrary view in that case because wrong payment had been made of a huge amount of money in case of large number of employees. The only concession made to the employees was for recovery in installments. So far as the case of the petitioner is concerned clearly on passing training examination he has to take steps through 6 representation to bring this fact to the notice of the authorities otherwise there was no occasion for passing the order contained in Annexure 1. Hence the order contained in Annexure 1 had had to be passed on a representation and if Annexure 1 was passed on such representation, it is against law, granting illegal benefit of jump promotion to the petitioner against the provisions of the policy decision of the Government. Hence the petitioner must be deemed to be not only the beneficiary of such wrong promotion but also a party to such wrong. Such illegal order must be treated as void ab initio. It is not a case of wrong calculation of certain minor amount while re- fixation of pay but it is a serious matter of granting promotion not to the next higher scale but to a scale by jumping a middle scale in between. Such patent illegality cannot be allowed to favour the petitioner at the cost of public exchequer. Hence, this Court is of the view that any amount paid to the petitioner upon re-fixation of pay on the basis of Annexure 1 has to be recovered from the petitioner after correcting the illegal order. The exercise leading to Annexure 2 had to be undertaken as appears 7 from Annexure 2 itself because some teachers similarly situated as the petitioner had also made claims for similar benefits. It was in such circumstances that this wrong action the authorities granting undue favour to the petitioner came to be detected and has been corrected by the impugned order contained in Annexure 2.” The submission of Mr.Singh that the case of the petitioners stands on different footing also does not appear to be in keeping with the pleadings on record in the writ petition wherein the petitioners in paragraphs 20 and 22 while seeking parity of their case with Raj Mohan Ray have stated as follows: “ 20. It is stated that one Rajmohan Rai, who remained in Gaya District after bifurcation alongwith the petitioners, took training for the session 1989-90 and declared successful has already got the B.Sc. trained scale vide memo No. 865 dated 15.3.1993 issued by the District Superintendent of Education, Gaya whereby and whereunder the same was to be paid from 16.3.1992 itself. 22. It is stated that vide order of District Superintendent of 8 Education, Gaya vide Memo No. 7121 dated 26.12.2001 petitioners were given the scale of B.Sc. trained with effect from 1.12.2001. However, petitioners wrote an application with regard to making payment of B.Sc. trained scale from 16.3.1992, as it has been paid to one Rajmohan Rai, similarly situated person, but no action has been taken in this connection.” In that view of the matter, this Court would be fully satisfied and would accept the submission of the counsel for the State that the case of the petitioners is squarely covered by the order of this Court dated 18.10.2006 in C.W.J.C.No. 4522/2006 (Raj Mohan Ray vs. State of Bihar & ors.). That being so, this writ application also must meet the same fate as in the case of Raj Mohan Ray (supra). This application, accordingly, is dismissed. (Mihir Kumar Jha,J.) Surendra/