IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3175 of 2004 BACHCHA NATH JHA & ORS Versus THE STATE OF BIHAR & ORS ----------- 5 13/5/2008 Heard the parties. Reference may be made to the order of this Court dated 27.3.2008 which reads as follows:- “Mr Ram Suresh Rai learned senior counsel for the petitioners while pressing the relief for the three petitioners for grant of trained pay scale to the physical trained teachers in the Middle school submits that while the petitioners are being denied such benefit on the strength of the judgment of this court in CWJC no.6947/94 disposed of on 27.7.96 holding that the teachers in physical education, not possessing the requisite certificate, diploma or degree in education can not be held to be trained teachers and are not entitled to scale of trained teachers until they acquire the requisite qualification, large number of similarly situated persons like the petitioners are still being paid trained pay scale. Mr Rai in this connection refers to a few illustrations in the case of Asha Kumari , Vidya Bhushan and others whose pay fixation statement has also been enclosed in support of such a contention. This court by an order dated 24.1.2006 had directed the counsel for the State to file a supplementary counter affidavit but such a counter affidavit has not been filed. Counsel for the State prays for and is allowed 2 three weeks time to file supplementary counter affidavit by way of last indulgence in which he should give not only parawise reply to the statement made in the writ application and the supplementary affidavit but he should also clearly disclose in such affidavit to be sworn and filed by the Education Commissioner, Human Resources Development Department as to whether any person in the State of Bihar working as a teacher of physical education without possessing requisite certificate of diploma and degree in education has been paid salary in the pay scale of trained teacher till today and /or after 27.7.2006 and if answer is in affirmative even in respect of any one of such cases, what action has been taken and /or is going to be taken against the authority who despite the knowledge judgment of this court has chosen to give this benefit not admissible to such physical untrained teachers.” Pursuant thereto Government Advocate No.5 has filed second supplementary counter affidavit enclosing therein not only order of suspension of five headmasters who were found to have been making payment of salary to the teachers who were not entitled to get such salary on account of their being untrained and/or not possessing the requisite qualification but also a clear statement that payment of salary in the trained scale to all such teachers have been stopped/withdrawn. This Court in the aforesaid order had already expressed its tentative view that in view of judgment of this 3 Court dated 27.7.1996 in C.W.J.C. No. 6947 of 1994 holding that the teacher in physical education are required to possess diploma and/or degree in the education and in absence thereof they would not be treated as trained teacher, has now no option but to non suit the petitioners who are admittedly untrained teachers and do not possess the requisite qualifications. Accordingly, their prayer of being given benefit of trained teacher with consequential higher pay scale must be rejected specially when their plea of discrimination in view of today’s supplementary counter affidavit no longer survives. This Court, however, would not be satisfied merely on the aforesaid stand of Mr. Shayam Kishore Sharma, Government Advocate No.5 that the five headmasters found to have been abusing their powers of making payment in the capacity of drawing and disbursing officer contrary to the decision of this Court as also consequential government decision, have been placed under his possession. In that view of the matter, this Court would direct the respondent no.1, i.e Principal Secretary in the Human Resources Development Department to ensure that suitable disciplinary action is also taken against those five headmasters, who have been placed under suspension on account of dereliction of duty and causing loss to the Government exchequer. In order to expedite the matter and to maintain uniformity, this Court would direct the Principal Secretary of 4 the Human Resources Development Department to appoint an enquiry officer, in the rank of Deputy Director of Education, who shall hold enquiry on day to day basis and thereafter conclude the enquiry within a period of six months after giving adequate opportunity to those five headmaster, namely, Lal Babu Prasad, Sarda Nand Giri, Harendra Prasad, Amir Hasan and Shiv Shankar Prasad, who were put under suspension by order dated 6.5.2008 of the District Superintendent of Education, East Champaran as contained in Annexure B to the second supplementary counter affidavit filed on behalf of respondent no.4. Upon conclusion of the said enquiry according to statutory and disciplinary rules by the said Dy. Director of Education, the enquiry report will be submitted to the District Education Establishment Committee, East Champaran which would thereafter take appropriate final decision in accordance with law within a period of next three months. At this stage, Mr. Ram Suresh Rai, learned Senior counsel appearing on behalf of the petitioner submits that this Court had found that such practice of illegal payment in the district of East Champaran was going on and the same has led to action against the headmasters of all the districts of East Champaran, but he is of the view that similar malpractice is also going on in other districts of the State also. In other words, he submits that the practice of payment of salary to the teachers of physical education despite being not trained in 5 education in the trained pay scale of teachers is going on all over Bihar. If that be so, this Court would direct the Principal- Secretary of Human Resources Development Department to take remedial steps keeping in view that there is an affidavit on his behalf that such malpractice has been stopped all over Bihar and any teacher being paid such salary though eligible for payment of salary in the pay scale of trained teachers has been also subjected to recovery of the excess amount paid to them. Thus if in future it is found by this Court that such a stand in the affidavit filed in the present case was false, this Court will have no option but to proceed against the Principal- Secretary, Human Resources Development Department. The Principal-Secretary of the Human Resources Development Department is thus directed to ensure that no such payment is being made to any of the teachers of physical education in the trained pay scale who are untrained/do not possess the requisite training qualification. With the aforementioned observation and direction, this writ application is dismissed. ( M i h i r K u m a r J h a , J . ) Abhay Kumar.