IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4401 of 2009 1. KHUSNUDA BEGAM, WIFE OF ALTAB ALAM, D/O LATE MD. SHAMIM KHAN 2. NAGMA NAZ, WIFE OF NEHAL AHMAD, D/O LATE MD. SHAMIM KHAN 3. MD. RASHID KHA, SON OF LATE MD. SHAMIM KHAN 4. MD. SHAHID KHAN, SON OF LATE MD. SHAMIM KHAN. ALL RESIDENT OF VILLAGE – BIUR, P.O.- BIUR, P.S.- CHAINPUR, DISTRICT – KAIMUR. …………… PETITIONERS. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY CUM COMMISSINER, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2. THE DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. 3. DISTRICT EDUCATION OFFICER, KAIMUR (BHABHUA). 4. THE HEADMASTER GANDHI SMARAK HIGH SCHOOL, CHAINPUR, KAIMUR, BHABHUA. 5. THE ACCOUNTANT GENERAL, BIHAR, PATNA. 6. THE DEPUTY DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA. ………… RESPONDENTS.. ----------- For the Petitioners : - Mrs. Anjana Mishra, Advocate Mr. Nagendra Kumar, Advocate For the State : - Mr. Sanjay Kumar Mandal, Advocate ACT to SC 27. For Accountant General : - Mr. Dhanendra Chaubey, Advocate 03/ 02.08.2011 Originally this writ application had been filed by Multha Khatoon, widow of Md. Shamim Khan, Retired Assistant Teacher of Gandhi Smarak High School, Chainpur, Kaimur, Bhabhua for quashing of the letter No. 7694 dated 30.12.2008, whereby the representation filed by Md. Shamim Khan himself during his life time was disposed of after his death by the Director, Secondary Education, Govt. of Bihar, Patna. During the pendency of the writ application Multha Khatoon died as such her son Md. Rashid Khan filed I.A. No. 1974 of 2011 for substituting names of legal heirs 2 of Multha Khatoon in her place. Names of legal heirs have been mentioned in para 2 of the interlocutory application. They are Khusnuda Begum, Nagma Naz, Md. Rashid Khan and Md. Shahid Khan. Substitution petition is allowed. Names of legal heirs mentioned in para 2 of the substitution petition is substituted in place of original petitioner and her name is directed to be expunged from the record of the case. Md. Shamim Khan was qualified as B.A. Hons. (Persian). He was appointed as teacher of Urdu and Persian language on 28.8.1969 at Higher Secondary School, Bhabhua. Considering his qualification in Persian a classical language, he was appointed in the pay scale of Rs.220-400, which was the pay scale of a trained teacher. The higher secondary education system was abolished by the Government vide resolution no. 1188 dated 27.4.1971 and Md. Shamim Khan become an Assistant teacher at High School, Bhabhua, Kaimur. Even at that time, he was allowed the revised pay scale of Rs.387-600, an approved pay scale of a trained graduate teacher. Time to time, pay scale of Md. Shamim Khan was revised. He was granted first time bound promotion and his salary was fixed in the senior pay scale. He continued to get revised pay scale of trained graduate 3 teacher till date, an objection regarding trained pay scale of Md. Shamim was raised by the Headmaster of Gandhi Smarak High School, Chainpur, Kaimur. The Headmaster of the school raised objection on this pretext that an audit objection has been raised against the fixation of salary of Md. Shamim Khan in the trained graduate scale, despite the fact that he is not a trained teacher. Case of the petitioner in this writ application, is based on the service book of late Md. Shamim Khan, as well as documents, which are communication in between different authorities of the Education Department. These documents show that Md. Shamim Khan had received his initial salary in the trained scale, treating him a classical teacher, who teaches language. Teachers, having Faziland Acharaya degree (which is equivalent to M.A. degree in Arbic, Persian and Sanskrit) were appointed as trained teacher, and treated as classical teacher, as provided in Bihar High School Service Conditions Rules, 1972, Chapter III, Rule 4(3). Teachers of classical language are deemed to be a trained teacher. In the year, 1994, when for the first time, an objection was raised by the Headmaster of the school, pay scale of Md. Shamim Khan was reduced from trained scale 4 to the untrained scale, without any show cause, without any enquiry. Several representations thereafter were filed by him, before the concerned authorities, but nothing was done. He retired from his service on 30.6.2003, and died on 12.6.2008. His pension was also fixed in the reduced untrained scale and till his life time, no decision could be taken by the respondent-authorities. After his death, Multha Khatoon, his widow, started pursuing this matter, but she also could not see the fruitful result of her effort. Finally, an order was passed by the Director, Secondary Education, rejecting claims of trained scale to Md. Shamim Khan. In this order, without assigning any reason, simply it has been stated that only graduate trained teachers are entitled for trained teacher’s pay scale. Md. Shamim Khan is not entitled for trained scale. Counsel for the petitioners submits that the Director, Secondary Education did not consider letter No. 492 dated 1.12.2008 sent by the District Superintendent of Education, Kaimur, Bhabhua. The District Superintendent of Education, Kaimur, Bhabhua, in capacity of competent authority for passing orders in the salary matters of an Assistant teacher, stated that Md. Shamim Khan was 5 appointed as a classical teacher in Multipurpose Higher Secondary School in the pay scale of Rs.220-400, i.e. pay scale of trained graduate teacher, considering his B.A. Hons. degree in Persian. Since, he was appointed in Higher Secondary School, his pay scale cannot be changed now. The District Superintendent of Education, Kaimur, Bhabhua stated that Md. Shamim Khan was initially appointed vide letter No. 143 dated 28.8.1969 as classical teacher, who taught Urdu and Persian, he was appointed as trained teacher. So far the stand taken by the Headmaster of the School that audit objection has been raised with regard to the trained pay scale of Md. Shamim Khan, was not found correct as no such audit report was found available in the office of the D.S.E., or in the school. In the letter of D.S.E., Kaimur specifically it has been mentioned that Bihar High School Service Conditions Rules, 1983, Chapter III, Volume 3, Rule 3(4) provides that whosoever is appointed for teaching classical language and his degree in Persian and Sanskrit language, they are deemed to be trained teachers. They are not required to undergo teachers’ training course as their appointment itself is made as a trained teacher. This 6 was the reason that right from the date of Md. Shamim’s initial appointment till the date his pay scale was re-fixed in the untrained pay scale by the Headmaster. Md. Shamim Khan, without any objection continued to receive his salary in the trained scale. He was given benefit of revised pay scale in the trained scale. Subsequently on a non-existing ground, in the year, 1994, his salary was reduced and re- fixed in the reduced untrained scale. I find that the dispute was created by the Headmaster in the year 1994, and it should have been decided much earlier. Md. Shamim Khans himself died, his wife, who undertook the responsibility of her husband, also died and now the sons and daughters have come in the basement, for similar relief. In view of the fact that Md. Shamim’s initial appointment itself had been in the trained scale, there was no reason for subsequently reducing it in the untrained scale. The order passed by the Director, Secondary Education dated 30.12.2008 contained in letter No. 7694 and communication letter dated 20.01.2009 contained in letter No. 251 issued by the Deputy Direction, Secondary Education, are quashed. This application is allowed, 7 directing the respondents to calculate the arrears of salary of the deceased Assistant teacher Md. Shamim Khan, in trained scale, since the date of it’s reduction in the untrained scale, till the date of superannuation and make payment of difference of arrears of salary to his legal heirs, re-fix the pension and other pensionary benefits of the deceased teacher in the revised trained pay scale, make payment of difference of arrears of pension and pensionary benefits to the substituted legal heirs of original writ petitioner, Multha Khatoon. The Respondents-authorities will complete this task and pass order for payment within three months from the date of communication/production of this order. DKS/ ( Mridula Mishra, J.)