IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13138 of 2001 CHANDESHWAR PRASAD, son of late Girija Nandan Prasad, Headmaster, Govt. Middle School Rauniya, Masaudhi, Anchal Masaudhi, District Patna … Petitioner Versus 1. THE STATE OF BIHAR, through the Secretary cum Commissioner, Human Resources Development Department, Govt. of Bihar, Patna 2. The Director, Primary Education, Govt. of Bihar, Patna 3. Deputy Director, Primary Education, Govt. of Bihar, Patna 4. District Superintendent of Education, Patna, Collectoriate Compound, Patna … Respondents ----------- 11. 6.7.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “(i) For quashing of the order dated 8.6.2001 passed by respondent no.2, the Director and issued vide memo No. 9/M4- 535/97-998 dated 12.6.2001 whereby and whereunder the representation dated 22.2.1999 for grant of graduate trained scale to the petitioner w.e.f. 27.9.1975 in lieu of 19.7.1983 has been rejected. (ii) For issuance of writ/order/ direction to the respondents to grant graduate trained scale to the petitioner w.e.f. 27.9.1975 (date of take over) in lieu of 19.7.1983, since respondents had granted graduate trained scale with effect from the date of recognition of the 2 school to similarly situated persons namely Ram Awadhesh Sharma and Surendra Singh and w.e.f. the date of take over to Braj Bhushan Sharma in the light of decision of this Hon‟ble Court passed in C.W.J.C.No. 991 of 1977. (iii) For payment of difference of salary in graduate trained scale w.e.f. 27.9.1975 to 19.7.1983 and for fixing pay accordingly.” Counsel for the petitioner while pressing the aforementioned relief would submit that once the school was taken over in the year 1975 with effect from 27.9.1975 all payments which were available to the petitioner in capacity of B.A. trained teacher were to be automatically extended by the State as a package of take over. He has also cited certain examples and also referred to a judgment of the Division Bench of this Court in the case of Braj Bhushan Sharma vs. the State of Bihar & ors. (disposed of on 12.9.1979), vide Annexure 19 to the writ application. In this case the authority on being directed by this Court in the earlier round of litigation in terms of a direction in the order dated 9.2.1999 in C.W.J.C.No. 3 9600/1997 has passed a well considered impugned order dated 8.6.2001 wherein it has been held by him that the services of the petitioner as a consequence of take over of his school were taken only as an untrained teacher and subsequently he was also allowed the B.A. trained scale of pay w.e.f. 18.7.1983 vide Memo No. 1908 dated 18.7.1983. The respondents have also in the order as also a subsequent order dated 19.1.2010 have explained that it was the part of the condition of the take over order of the school dated 27.9.1975 that the post of Headmaster and the first Assistant Teacher of the school would be filled up from the District seniority list of the teachers and on that basis the petitioner was also given only the status of untrained teacher. Such an event took in the year 1975 and the petitioner did not make any protest as with regard to conditions of take over of the school. Such take over of the school has been in fact, therefore, part of the conditions of the petitioner as well and he cannot be allowed to wriggle out of the same either by citing some example of other 4 teachers or by referring to the judgment of the Division Bench in the case of Braj Bhushan Sharma (supra). In this context what really is very significant to note here that when the school of the petitioner was merged and recognized as a Dwibargiya Madhya Vidyalaya (Middle School) by an order dated 17th of March, 1975 it was specifically mentioned that the said school shall have eight post of teachers out of which first two post of Headmaster and the first Assistant Teacher in the B.A. trained scale of pay and I.A. trained scale of pay shall be filled up from the District gradation list. It was further made clear in the said order that one Shardhanand Yadav working as an I.A. trained teacher would be absorbed only in the matric trained scale of pay whereas the services of the petitioner would be recognized as a matric trained teacher only after he would complete qualification of B.A. trained teacher. It must be also kept in mind that as on 15.3.1975 the petitioner had not become a trained teacher as would be evident 5 from the fact that the result of such Diploma in teaching course was declared some time in the year 1976 born out from the provisional certificate of Mithila University produced by the petitioner by way of Annexure 4. Thus, it becomes more than clear that when the school of the petitioner was recognized as a Middle School on 15.3.1975 he was only a Graduate but untrained and as such, the decision was taken to absorb him as a matric trained teacher only after his acquiring qualification of training. The mystery in fact gets further clarified from Annexure „A‟ to the counter affidavit wherein the respondents have annexed the consequential order dated 24.9.1975 appointing the petitioner on the post of Assistant Teacher in the fixed pay of matric untrained of Rs. 230/-. Thus, as on 24.9.1975 the petitioner‟s status in the school was of an untrained matriculate teacher. In this regard the pay fixation statement of the petitioner dated 28th January, 1976 would further go to show that the fixed pay of Rs. 230/- of matric untrained teacher was 6 subsequently changed to pay scale of untrained matric teacher and when the petitioner had produced the result of Diploma in teaching course examination the District Superintendent of Education, Patna had sanctioned him the pay of a matric trained teacher in keeping with the stipulation made in the order of recognition of the school dated 15.3.1975. Infact the petitioner continued to work as an Assistant Teacher from 24.9.1975 till he was sought to be posted as Headmaster of Middle School, Sanda (Dhanarua) by an order dated 19th July, 1983 when he was given the pay scale of B.A. trained teacher with effect from 19.7.1983 on the basis of the judgment of this Court in the case of Braj Bhushan Sharma. It has to be also kept in mind that so far case of Braj Bhushan Sharma is concerned, there was no iota of doubt that prior to his school, Middle School, Korara (Paliganj) becoming a Government school in the month of August, 1974 he had already been appointed as a permanent Headmaster on 4.1.1968. When the school of Mr. Sharma at a point of time its privately managed by the 7 Managing Committee had found Mr. Sharma to have also passed his Bachelor of Education Examination and thus he had become a trained graduate from September, 1972 and the school was recognized in August, 1972 he was treated as an In-charge Headmaster because of non-fulfilment of training qualification, inasmuch as his result was declared in the month of September, 1972. None-the-less Mr. Sharma was a trained graduate on the date of take-over of the school in the month of August, 1974 and the amalgamation of the school of Mr. Sharma and its take-over seeking to reduce his status from the Headmaster to Acting Headmaster was under zone of consideration before the Division Bench where the sole question being considered and decided was as to whether Mr. Sharma was entitled to salary of trained graduate from August, 1974 and whether he could be removed from the post of Headmaster. The Division Bench in that context had also gone into the question as to whether Mr. Sharma was working as Headmaster prior to the day his school was taken over by the Government and whether he 8 was drawing salary of trained graduate teacher prior to its take-over. The Division Bench had on examination of the aforesaid facts come to a specific finding that Mr. Sharma had been drawing the scale of a trained graduate on the date of take-over of the school and in that background it was held that as on the date of take-over he was a trained graduate he was entitled to hold the post of Headmaster. The Division Bench, however, had clarified that on the special facts and circumstances of the case the reduction of Mr. Sharma from the post of Headmaster to the Acting Headmaster was unsustainable. This Court would fail to appreciate as to how the ratio of the judgment of Braj Bhushan Sharma (supra) can be made applicable to the facts of the case of the petitioner. In this case the petitioner‟s appointment in the school in question was an untrained matriculate teacher. Such appointment was accepted by the petitioner and he had continued till 23.9.1975 in capacity of an untrained teacher. The petitioner was never functioning as the 9 Headmaster and his claim of such earlier arrangement of being Headmaster also gets thoroughly exposed on close perusal of two service books produced by him, one by way of Annexure 6 opened by Panna Lal Rai, the Secretary of Madhyamik Vidyalaya, Bikramganj which bears only endorsement of the petitioner himself. The authenticity of such service book (Annexure 6) has been seriously questioned by the respondents in the counter affidavit by producing his another service book which the petitioner again himself had filed at the time of claiming his pension. This service book of the petitioner, as contained in Annexure „R4/B‟ was opened by the Deputy Inspector of School, Danapur, Patna and bears the entry of detail of the petitioner‟s service from 24.9.1975 showing his initial appointment on the post of Assistant Teacher and his beginning salary as on 24.9.1975 to be Rs. 230/- with subsequent annual increments in every September of the subsequent year. The aforesaid facts which, therefore, becomes clear from the perusal of the service book of the petitioner, as contained in Annexure 10 „R4/B‟ itself goes to show that as on the date of take-over of the school the petitioner was holding the post of an Assistant Teacher and not that of the Headmaster and therefore, his claim on the basis of self serving orders or self created service book, contained in Annexure 6, showing the appointment of the petitioner on 1.9.1976 directly on the post of Headmaster in matric trained scale of pay at a point of time when he had no qualification of being a trained hand obviously has been created subsequently to bring his case at par with Braj Bhushan Sharma. It is this aspect of the matter which has been dealt at length in the order dated 19.1.2010 when the whole issue relating to the petitioner was placed before the District Education Establishment Committee wherein the following finding was arrived with regard to service history of the petitioner: Þtgka rd oknh dks fo|ky; vf/kxzg.k dh frfFk ls LukÙkd izf'kf{kr dk osrueku Lohd`r djus dk nkok gS ds laca/k esa vafdr djuk gS fd oknh dh fu;qfDr izca/kdkfj.kh lfefr }kjk o"kZ 1967 esa e0fo0 va/kjkpkSdh] foØe esa fd;k x;k FkkA rRi'pkr~ mi f'k{kk funs'kd ds i=kad 1444 fnukad 17-03-75 ds }kjk mDr fo|ky; dks e0fo0 ds :i esa mRØfer djrs gq, izLohd`fr iznku dh x;hA ljdkjh i= la[;k 3188 fnukad 27-09-75 }kjk fo|ky; dk vf/kxzg.k bl 'krZ ij fd;k x;k fd fo|ky; ds iz/kkuk/;kid ,oa ojh; f'k{kd ds 11 in ij ftys ds ojh;rk lwph ls inLFkkiu fd;k tk;sxk rFkk oknh eSfVªd vizf'kf{kre ds osrueku esa vf/kxzfgr dh x;h FkhA oknh dks bl dk;kZy; ds Kkikad 1908 fnukad 18-07- 83 ds }kjk ch0,0 izf'kf{kr dk osrueku Lohdf`r djrs gq, e0fo0 lkaMk] ?ku:vk esa inLFkkfir fd;k x;kA ;g vkns'k ekuuh; mPp U;k;ky; ds ;kfpdk la[;k 999@77 ds vkyksd esa fn;k x;k FkkA rRdkyhu ftyk f'k{kk v/kh{kd] MkW izse 'kadj JhokLro ds }kjk Jh oknh dks muds Kkikad 9027 fnukad 29-07-91 ds }kjk fnukad 27-09-75 fo|ky; vf/kxzg.k dh frfFk ls gh Lukrd izf'kf{kr dk osrueku Lohd`r dj fn;k x;kA pwafd JhokLro ds }kjk fu;eksa ,oa izko/kkuksa ds foijhr in miyC/k ugha jgus ds ckotwn vusd f'k{kdksa dks izksUufr;ka ns nh x;h Fkh] ftls ftyk f'k{kk LFkkiuk lfefr }kjk leh{kksijkar jn~n fd;k tk pqdk gSA oknh dks Hkh Jh JhokLro }kjk lsok vf/kxzg.k dh frfFk ls gh LukÙkd izf'kif{kr ds osrueku esa vfu;fer izksUufr ns nh x;h Fkh rFkk Jh JhokLro }kjk fn;s x;s lHkh vfu;fer izksUufr;ksa dks ftyk f'k{kk LFkkiuk lfefr ds fu.kZ;kuqlkj jn~n fd;k tk pqdk gSA iwoZ esa Hkh oknh ds }kjk bl ekeys ls lacaf/kr ;kfpdk la[;k 9600@97 ekuuh; mPp U;k;ky; esa nkf[ky fd;k x;k Fkk] ftlesa ekuuh; U;k;ky; }kjk vkns'k ikfjr djrs gq, funs'kd ¼izk0f'k0½ fcgkj ds fuLrkjk/khu fd;k x;kA mDr vkyksd esa funs'kd ¼izk0f”k0½ fcgkj ds i=kad 998 fnukad 12-06-01 ds }kjk oknh ds nkok dks vLohd`r fd;k tk pqdk gSA oknh ds ls0fu0 ikoukvksa ds Hkqxrku ds Øe esa oknh dh ls0iqfLrdk oknh }kjk lefiZr dh x;h gS ftldk feyuk lh0MCyw0ts0lh0 la[;k 13138@01 esa iz;qDr ,usDpj &6 ¼lsok iqfLrdk½ ls djus ij nksuksa lsok iqfLrdk ds fu/kkZfjr osru] izkIr osru ,oa vU; izfof'kf"V;ksa esa fofHkUurk ik;h x;h] ftlls Li"V gksrk gS fd oknh ds }kjk Lo;a le;&le; ij iqujhf{kr osrueku dk ykHk vfu;fer izksUufr ds vk/kkj ij fy;k tkrk jgk gS rFkk viuh ckr eukus ds fy, u;s&u;s gFkd.Ms viuk;s tkrs jgs gSa izfof'kf"V;ksa ds ns[kus ls Li"V gksrk gS fd oknh }kjk lsok vf/kxzg.k dh frfFk rd osru izkIr djrs jgs gSA tc os ;kpuk ds vuqdwy osru izkIr djrs gh jgs gSa fQj Hkh osru izkIr djus gsrq ;kfpdk nkf[ky djuk bl ckr dks izekf.kr djrk gS fd os vfu;fer izkIr osru dh lEiqf"V djokuk pkg jgs gSa vkSj blh dkj.ko'k muds }kjk viuh ckr euokus ds fy, u;s&u;s gFkd.Ms viuk;s tk jgs gSaA oknh dh lsok dk vf/kxzg.k eSfVªd vizf'kf{kr ds osrueku es fd;k x;k Fkk vkSj ;g Hkh vkns'k fn;k x;k Fkk fd iz/kkuk/;kid ,oa iz/kku lgk;d ds in ij ftys dh ojh;rk lwsph ds vk/kkj ij inLFkkiu fd;k tk;sxkA ;g izekf.kr rF; gS rFkk okn esa ns; frfFk ls oknh dks LukÙkd izf'kf{kr dk osrueku Hkh Lohd`r fd;k tk pqdk gSA dk;kZy; esa miyC/k lsok iqfLrdk ls ;g Hkh Li"V gS fd oknh }kjk vfu;fer izksUufr ds QyLo:i izkIr osrueku gh iqujhf{kr osrueku esa Lo;a fudklh ,oa O;;u inkf/kdkjh ds vf/kdkj dk nq:i;ksx djrs gq, fudklh djrs jgs gS vksj mlh dks Nqikus ds fy, 1975 ds ekeys dks rwy ns jgs gSa rFkk nwljs dk gokyk nsdj ekeys dk my>kdj vuqfpr ykHk ysuk pkg jgsa gSaA tcfd oknh }kjk xyr rF;ksa dks lgkjk fy;k tk jgk gS tks vuqfpr gSA bl izdkj mijksDr ls Li"V gS fd oknh }kjk Lo;a fudklh ,oa O;;u inkf/kdkjh ds vkns'k dk 12 nw:i;ksx djrs gq, vfu;fer izksUufr tks j|Ìgks pqdk gS ds vk/kkj ij osru izkIr djrs jgs gSa tks mUgsa ns; ugha gSA vr,oa mijksDr ifjis{; esa ftyk f'k{kk izksUufr }kjk fnukad 26-12-09 dks fy;s x;s fu.kZ;kuqlkj oknh ds lsok vf/kxzg.k djus dh frfFk ls LukÙkd izfkf{kr dk osrueku Lohd`r djus laca/kh ;kpuk dks vLohd`r fd;k tkrk gSAÞ The said order dated 10.1.2010 having been not assailed by the petitioner a question, therefore, would arise as to whether a person like the petitioner who has created false documents to claim salary of the post of Headmaster in B.A. trained scale of pay from the date of take-over of the school should be allowed only on the basis of some precedence including that of Braj Bhushan Sharma (supra) and as noted above, the case of Braj Bhushan Sharma is completely distinguishable on facts and the reliance placed by the petitioner on the precedent cases of two other persons, namely, Ram Awadhesh Sharma and Surendra Singh also do not inspire confidence, inasmuch as the respondents have themselves doubted the correctness in the decision granting such benefit of B.A. trained scale of pay to both Ram Awadhesh Sharma and Surendra Singh and have also issued notice to both of them to justify their earlier 13 promotion and grant of B.A. trained scale of pay from the date of take-over. This Court in absence of any of such persons including Braj Bhushan Sharma, Ram Awadhesh Sharma and Surendra Singh who have not even been impleaded as party to this writ application, is not in a position to verify the terms of take-over of their schools vis-à-vis specific terms of take-over of the school of the petitioner. It is also not in a position to allow the case of the petitioner merely because the respondents may have committed some error in granting B.A. trained scale of pay to Ram Awadhesh Sharma and/or Surendra Singh. In any event he petitioner has to first prove his own case and once this aspect becomes clear that the petitioner‟s services were never recognized as Headmaster of the school and that he was appointed initially as a matric untrained teacher in the taken over school on a fixed scale of pay of Rs. 230/-, his story sought to be supported by his own self created documents or the service book, as contained in 14 Annexure 6, would inspire no confidence especially when the said service book shows the petitioner himself under his own signature and verification has claimed to have been drawing salary of Rs. 400/- as on 1.9.1975, whereas the service book produced by the petitioner for claiming pension from the funds of the State Government shows the petitioner to have drawn salary of Rs. 230/- as on 24.9.1975. If the petitioner was the Headmaster of the school which got merged with the Middle School in view of the order of recognition dated 17.3.1975 he had a cause of action as against the order dated 17.3.1975 because the said order specifically provided for grant of matric trained scale of pay only after the petitioner would acquire full qualification of B.A. trained. The petitioner did not challenge the said order of recognition of the school and in fact had accepted his order of appointment dated 24.9.1975, as contained in Annexure „A‟ appointing him only as an Assistant Teacher of the school as untrained matric initially on the fixed 15 pay and later on in the pay scale of untrained matriculate which also was later on in the year 1976 upon furnishing of his proof having passed the Diploma in teaching course examination was changed to matriculate trained scale of pay. Thus, if the petitioner from 1975 to 1983 was working only as an Assistant Teacher and got B.A. trained scale of pay by a sheer misrepresentation of his case being similar to Braj Bhushan Sharma he should have remained content with such order but then when the petitioner had tried to get this benefit of B.A. trained scale of pay from the date of take-over of the school, the whole thing has got exposed and his such claim was ultimately rejected in the two orders, one passed by the Director of Primary Education dated 8.6.2001 and the other by an order dated 19.1.2010. Thus, this Court does not find any rationale or justification in the grievance of the petitioner as with regard to his claim for B.A. trained scale of pay with effect from the date of take-over of the school i.e. 27.9.1975. Strictly speaking 16 this Court having also found that the petitioner was not entitled for such B.A. trained scale of pay from 19.7.1983 as his case was nowhere similar to that of Braj Bhushan Sharma (supra), had the petitioner not retired from service during the pendency of this writ application, this Court could have directed the authorities to also recall the order of grant of promotion to the petitioner on the post of Headmaster in B.A. trained scale of pay with effect from 19.7.1983. This Court, however, taking into account that such a direction would lead to huge recovery of the petitioner, would leave the matter at rest by only observing that in passing of such an order dated 19.7.1983 both the petitioner and the authority are equally responsible in misinterpreting the case of Braj Bhushan Sharma. That being so, this Court does not find any merit in this writ application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/