IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8580 of 1997 1.BIHAR STATE PRIMARY TEACHERS ASSOCIATION, District Branch Siwan, through its Secretary, Sri Ram Parvesh Singh, son of Sri Babu Ram Singh, resident of Ananderdhala, Laxmipur, P.S. and P.O. Siwan, District Siwan. 2.Dhruwa Narayan Singh son of late Sahdeo singh, resident of village and P.O. Nainpur, P.S. Pachrukhi, district Siwan, at present Assistant Teacher, Government Middle Shool, Shyampur (Siwan). 3.Nandjee Yadav son of late Kailash Yadav, resident of village Puraina, P.O. Sarsar, P.S. Siwan, Disrict Siwan, at present Assistant Teacher, government Middle School, Kailgarh (Siwan). 4.Sheo Nath Rai son of Sri Gorakh Rai, resident of village Basauli, P.O. Naibganj Bazar, P.S. Basantpur, district Siwan, at present Assistant Teacher, Government Middle school Bindusar Hamid Anchal (Siwan). 5.Kapil Deo Prasad son of sri Sita Ram Mistri, resident of villge Damchhu Tola Korar, P.O. Gopalpur, P.S. Basantpur, District Siwa, at present Assistant Teacher, Government Middle School, Kauria, Bhagwanpur. 6.Gurucharan Bhakta son of late Matiwar Bhakta, resident of village Pipra, P.O. Kheray, P.S. Ardar, District Siwan, at present Assistant Teacher, D.A.V.School, Siwan. 7.Ram Ratu Dwivedi son of late Radha Krishna Dwivedi, resident of village and P.O. Sarari, P.S. Goriyakothi, District Siwan, at present Assistant Teacher, Government Middle School, Pachrukhi (Siwan). 8.Anand Mohan Prasad Srivastava, son of late Lallan Prasad Srivastava, resident of village Shikhpura, P.O.Chainpur, P.S. Goreyakothi, District Siwan, at present Assistant Teacher, Government Middle School, Madhopur. 9.Jagannath Prasad son of late Sudarshan Prasad, resident of villagew Bisunpura, P.O. Jogapur, Kothi, P.S. Jamo Bazar, District Siwan, at present Assistant Teacher, Government Middle School, Goreyakothi. 10.Banke Lal Singh son of late Saryu Singh, resident of village Pakari Bengali, P.O. and P.S. Siwan, District Siwan, at present Assistant Teacher, V.M.Middle Shool Siwan. Versus 1.THE STATE OF BIHAR through the Secretary, Primary and Adult Education, education Department, Government of Bihar, New Secretariat, Patna. 2.TheDirector, Primary Education, Education department, Government of Bihar, Patna. 3.The District superintendent of Education, Primary Education, At and P.O. Siwan, District Siwan. ----------- 8 27.7.2010 Heard Mr. Akashdeep, learned counsel for the 2 petitioner and learned counsel for the State. Prayer of petitioner no.1 an Association of teachers in representations capacity and nine other teachers in their individual capacity this writ application reads as follows:- “That this is a petition for issuance of appropriate writ and direction for quashing the impugned order as contained in Memo No.1248 dated 28.6.1995 (Annexure-5) issued by respondent no.2 to all District Superintendent of Education, directing that Teachers getting Intermediate Scale will not get any priority in scale and Seniority as Intermediate trained teachers; and Seniority of Matric Trained teachers will be fixed from their date of Matric Trained but in case of B.A. Trained teachers, they shall get their Seniority from the date of their B.A. Trained; and be further pleased to issue writ in the nature4 of Writ of Mandamus, commanding the Respondents to fix and grant scale of pay equivalent to I.A. Trained and Seniority to petitioners who are Intermediate trained teachers from the date of fitment in that scale or equivalent scale of pay and grant all other consequential benefits of pay, seniority and promotion admissible in accordance with law.” Mr. Akashdeep, learned counsel for the petitioner very fairly submits that while there is no challenge by the petitiners to the Cadre Rules, 1993 seeking to amalgamate the posts Matric Trained pay Scale teachers with the I.A. Trained Pay scale teachers w.e.f. 1.1.1986, but the petitioner no.2 to 10 drawing higher salary in view of being granted I.A./ I.Sc. trained pay scale cannot be subjected to reduction of pay on account of enforcement of 1993 Rules giving retrospective operation by way of their revised pay fixation either in terms of implemental of the pay revision made by the State Government or in any subsequent pay fixation. In this context he had also placed reliance on the 3 impugned circular issued by the authorities with regard to fixation of seniority, but then at the end of the day he could agree that the sole grievance of the petitioners remained confined to protection of their pay in the revised pay scale with an angle that in no event they should be subjected to any reduction of pay in getting less than what they have been given in I.A. trained pay scale. A counter affidavit has been filed on behalf of the respondents, wherein it has been stated as follows:- “That before giving parawise reply to the writ petition it is pertinent to mention here that the teachers of Nationalised Elementary School was given benefit of pay revision through Finance Department resolution no 6022 F (2). The pay of the teachers have been fixed vide Schedule-II of the said resolution dated 18.12.1989. It is further stated that the pay of the teachers of the said school who were working in Matric trained/Intermediate untrained/ Intermediate trained/ Graduate untrained scale were clubbed together and a new scale for such teachers were prescribed as Rs.1200-2040/-. It is further stated that the promotion Rule 1993 has been promulgated in terms of rule 13 (v) of the aforesaid resolution no.6022 F (2) dated 18.12.1989. The petitioners have availed all the Financial benefit according to the said resolution, hence, now they have no right to agitate against the instruction issued by the Director, Primary Education in the aforesaid resolution. That with regard to the statement made in paragraph 10 of the writ petition under reply it is stated that it has already been replied in the aforementioned paragraph need no further comment. It is further stated that the memo no.1248 dated 28.6.95 issued by the Director, Primary Education is in accordance with the Resolution dated 18.12.1989 of the Finance Department and promotion Rules 1993. Hence, the prayer of the petitioners is against the law and also amounts to creation of class within the class amongst the teachers at present working in the pay scale of Rs.1200-2040/-. That with regard to the statement made in paragraph nos. 11 to 14 of the writ petition under reply it is stated that the prayer of the petitioner for 4 granting scale of Rs.1640-2900 who were in receipt of Rs.730 to 1080 is against the prevailing rule and provision which is not maintainable.” In the opinion of this Court there are two concept in service jurisprudence, one being that the employer can always create any number of separate cadres or amalgamate different cadres into one and the other that the persons holding such posts in the segregated or amalgamated cadres can be denied any pre- existing benefit. The only safeguard to the incumbents holding posts is that their vested right acquired before such segregation or amalgamation of cadre cannot be taken away. Judged in this background of settled proposition of law the grievance of the petitioners as with regard to their seniority has to be held misconceived inasmuch the seniority in the new amalgamated cadre will always be fixed on the appointed dated i.e. 1.1.1986 from which date the 1993 Rules amalgamating the cadres has been brought in force. Therefore when the 1993 rules have been given retrospective operation w.e.f. 1.1.1996, validity whereof is not challenged by the petitioners they cannot any claim to retain their earlier seniority and such seniority will have to always worked out as per the provisions made in the 1993 Rules. It has to be also noted with profit that the vires of 1993 rules with regard to merger of cadres of Matric Trained with Intermediate Trained Teachers affecting chance of promotion of B.Sc. and B.A. trained teachers, in fact, was made subject matter of a writ petition in the case of „Naresh Jha & Ors. Vs. State of 5 Bihar & Ors’ reported in 1994 (2) P.L.J.R 348 wherein after considering 1993 rules as also the circular dated 18.12.1984 it was held that no distinction or classification could be made between Arts and Science teachers for the purpose of their promotion. In fact, whole issue with regard to grant of B.A/B.Sc. trained pay scale was later on in terms of 1993 Rules also gone into by the Full Bench of this Court in the case of „Ram Nath Prasad Singh & Ors. Vs. The State of Bihar & Ors’ reported in 2009 (3) P.L.J.R. 384, wherein the Full Bench has held the 1993 rules to be intravires. After all these events have taken place and much water has flown in the River Ganges there would be hardly any scope for the petitioners to assail the 1993 Rules. As with regard to the grievance of the petitioner nos. 2 to 10 in respect of retaining their old pay that they were drawing prior to enforcement of 1993 Rules they can at best be entitled for pay protection to emphasize this aspect because as noted above the sole grievance of the petitioners for retaining the benefit of their earlier fixation of pay in terms of 1989 Rules as contained in Annexure A to the counter affidavit, gets answered from the provisions of Rule 78 of the Bihar Service Code which reads as follows:- “The initial substantive pay of a Government servant who is appointed substantively to a post on a time scale of pay is regulated as follows:- (a)If he holds lien on a permanent post, other than a tenure post, or would hold a lien on such a post had his lien not been suspended; (i)When appointment to the new post involves the assumption of duties or responsibilities 6 of greater importance (as interpreted for the purposes of rule 89) than those attached to such permanent post, he will draw as initial pay the stage of the time scale next above his substantive pay in respect of the old post; (ii)When appointment to the new post does not involve such assumption, he will draw as initial pay the stage of the time scale which is equal to his substantive pay in respect of the old post, or, if there is no such stage the stage next below that pay, plus personal pay equal to the difference and in either case will continue to draw that pay until such time as he would have received an increment in the time scale of the old post, or for period after which an increment is earned in the time scale of new post, whichever is less. But if the minimum pay of the time scale of the new post is higher than his substantive4 pay in respect of the old post, he will draw that minimum as initial pay; (iii)When appointment to the new post is made on his own request under rule 56 (a) and the maximum pay in the time scale of that post is less than his substantive pay in respect of the old post he will draw that maximum as initial pay. (b)If the conditions prescribed in clause (a) are fulfilled he will draw as initial pay the minimum of the time scale: Provided, both in cases covered by clause (a) and in cases, other than cases of re- employment after resignation or removal or dismissal from the public service covered by clause (b), that if he either- (1)has previously held substantively or officiated in- (i)the same post; or (ii)a permanent or temporary post on the same time scale, or (iii)a permanent post, other than a tenure post, on an identical time scale, or a temporary post on an identical time scale such post being on the same time scale as a permanent post, or (2)is appointed substantively to a tenure post on a time scale identical with that of another tenure post which he has previously held substantively or in which he has previously officiated. then the initial pay shall not be less than the pay, other than special pay, personal pay or emolument classed as pay by the State Government under rule 34 (a) (iii), which he drew on the last such occasion and he shall count the period during 7 which he drew that pay on such last and any previous occasions for increment in the stage of the time scale equivalent to that pay. If however, the pay last drawn by the Government servant in a temporary post has been inflated by the grant of premature increments the pay which he would have drawn, but for the grant of those increments, shall unless otherwise ordered by the authority competent to create the new post, be taken for the purposes of this provision to be the pay which he last drew in the temporary post.” In terms of Rule 78 of the Bihar Service Code, in fact whenever the State Government announces for implementation of pay revision like the present one wherein it has also laid down the manner of fitment of pay scale so as to ensure that a person being put in the revised pay scale would not be made to suffer by getting a lesser pay. This concept under Rule 78 of Bihar Service Code is also in keeping with Rule 22C of Fundamental Rules and has been tailored to meet the contingency of individual hardship in the event of Pay Revision. All these provisions are therefore sufficient to repell apprehension in the mind of the petitioners as with regard to fixation of their pay in the revised scale of pay which cannot be lesser than what they were drawing before implementation of the report of pay revision committee. In this context it has to be also kept in mind that there is no specific example cited in the writ petition on the basis of which the petitioners could demonstrate any prejudice being caused to them in fixation of their pay and therefore nothing more is required to be said in this regard by this Court and it would close the matter with a liberty to the petitioners to raise this 8 question at appropriate time as with regard to any anomaly which they could have suffered on account of the impugned order as contained in Annexure-5. In the light of aforementioned observations and directions, this writ application is disposed of. Abhay Kumar ( Mihir Kumar Jha, J.)