IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6702 of 2002 HARIDWAR PRASAD SINGH, son of late Girja Prasad Singh, resident of village Rampur Bakhara, P.S. Bhagwanpur, District Vaishali presently working as Incharge Headmaster, Vidya Vihar High School, Muzaffarpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Director, Secondary Education, Govt. of Bihar, New Secretariat, Patna 3. The Deputy Director, Department of Secondary Education, Govt. of Bihar, New Secretariat, Patna 4. The Regional Deputy Director of Education, Tirhut Range, Muzaffarpur 5. The District Education Officer, Muzaffarpur … Respondents ----------- 4. 16.9.2010 Having heard Mr. Pushkar Narain Shahi, learned counsel for the petitioner and the learned counsel for the State with regard to the following prayer: “(i) For issuance of appropriate writ/writs, order/direction for quashing the order passed by the Director of Secondary Education, Bihar, Patna which was communicated to the petitioner vide Memo No. 570 (Bidhi) dated 1.7.2000 issued under the signature of respondent no.3 whereby and whereunder the claim of the petitioner for payment of difference of salary on account of grant of Post Graduate trained scale with effect from 1.5.1977 till 26.6.1990 has been rejected. (ii) For further commanding the respondents to pay to the petitioner the difference of salary 2 due to him on account of grant of Post Graduate trained scale (in Faculty of Science) with effect from 1.5.1977 to 26.6.1990 and/or P.G. scale (senior).” this Court is of the firm opinion that the petitioner cannot get the said relief only on account of a pure suppression of fact made by him that earlier his request for grant of Post-graduate trained scale of pay was rejected by the authority, the Director, Secondary Education vide his letter no. 200- 201 dated 7.1.1981. It has to be noted that the petitioner did not state about this fact in the writ application and only in the impugned order this order was referred to and therefore, once the petitioner has acquiesced his right to the said order dated 7.1.1981 there would be no question of allowing the petitioner to reopen the chapter even on the ground of remand made by this Court in the order dated 19.2.1999 in C.W.J.C.No. 8250/1990. From the reading of the said order dated 19.2.1999 also it does not transpire that this Court was ever informed that the prayer of the petitioner 3 for grant of Post-graduate trained scale of pay had been rejected by a specific order dated 7.1.1981. In that view of the matter, once the question of payment of Post- graduate trained scale of pay of the petitioner with effect from 1.5.1977 had been rejected on a valid and cogent ground that the said post was not vacant, there could be no review of the said order only because the petitioner suppressed this fact in the first round of litigation and got an order of remand for reconsideration of the matter. That apart it is absolutely clear from the reading of the impugned order itself that the school in question of the petitioner was a recognized High School which was taken over only with effect from 2.10.1980 in view of take-over of the High Schools by the State Government under the Bihar Non-Government Secondary School Taking Over and Control Act, 1981 (which was preceded by the Ordinance) promulgated in the year 1980. Prior to the said date the liability for payment of salary to the teachers of the recognized school was not to 4 be shared by the private management and only deficit grant was to be given in some of the schools. It is not the case of the petitioner that the Post-graduate trained scale of pay to the petitioner was admissible from the funds of the Government with effect from 1.5.1977, rather the same was earlier the liability of the Managing Committee of the school. In such a situation, when there is a specific finding of fact that the post of Post-graduate trained teacher had remained occupied by one Sri Umesh Singh, it would be difficult for this Court to accept the submission of Mr. Shahi that since Mr. Singh has proceeded on leave there would be a deemed vacancy of teacher of the Post-graudate trained scale of pay. Mr. Shahi’s reference to the certain orders of Bihar University showing joining on the post of Demonstrator by the aforesaid Umesh Singh again cannot be an answer to the concept of termination of lien which under the Bihar Service Code can be terminated only after resignation of the person. Admittedly Mr.Singh had not resigned on 1.5.1977 and that was the reason that the 5 first request of the petitioner for grant of Post-graduate trained scale of pay was rejected by a specific order dated 7.1.1981. Though the copy of the said order has not been brought on record by the petitioner or the State but its content has been clearly mentioned in the impugned order recording that such promotion as desired by the petitioner in the Post-graduate trained scale of pay was denied only due to want of permanent vacancy on the said post. There is yet another facet which would disentitle the petitioner for grant of benefits of pay scale of Post-graduate trained scale, inasmuch as whatever salary was being paid in the recognized High Schools, once they became the Government school, the Government by Resolution No. 2260 dated 30.10.1980 had remodeled the pay scales wherein in the category of assistant teacher of those teachers who were either working on the substantive post of Assistant Headmaster or were already placed as on 2.10.1980 in the Post-graduate trained scale of pay or selection grade scale of pay were allowed to continue in the old scale of Rs. 6 415-745 and the rest of the graduate trained Assistant teachers drawing their salary in the pay scale of Rs. 387-600 were given the same pay scale but for both the category, 20% post were placed in the selection grade i.e. Rs. 510-1155, which was the pay of the higher post of the Headmaster. Obviously the Government did not intend to continue with the Post-graduate trained scale of pay after 2.10.1980 and had only protected the existing persons drawing the salary under the Post-graduate trained scale of pay as on 2.10.1980. It is in this context that the Government circular No. 9 dated 4.1.1982 has to be appreciated wherein it was clarified that the benefit being extended to the teachers of taken over High School which was earlier restricted from 2.10.1980 by way of grant of salary from the funds of the Government was to be extended in the same manner in which the teachers of the other Government schools were drawing their salary by giving it retrospective effect but then again putting a rider that they would not be entitled for payment of any arrears prior to 7 2.10.1980. Thus, from reading of the Government circular, dated 30.10.1980 and 4.1.1982 it becomes clear that the concept of promotion in the Post-graduate trained scale of pay at least after 2.10.1980 when the schools were taken over did not remain in force. Now comes a question to the benefit which the petitioner was made entitled in view of his subsequent order of promotion which was issued by the authority on 26.6.1990. From the reading of the said order (Annexure 3) it would be clear that the Director, Secondary Education, in the year 1990 in continuation to his earlier order dated 7.1.1981 rejected the claim of the petitioner for grant of promotion in the Post-graduate trained scale of pay with effect from 1.5.1977 on the ground of absence of permanent vacancy and had allowed promotion of the petitioner with effect from 1.5.1977 by putting a rider that though the petitioner’s pay scale will be fixed with annual increment with effect from 1.5.1977 he would not be entitled for any arrears till the date of issuance of the order i.e. 8 26.6.1990. The rationale for this order was very clear, inasmuch as earlier by the order dated 7.1.1981 the authority had held the petitioner not to be entitled for grant of promotion due to want of permanent vacancy and therefore, the order which was passed on 26.6.1990 had only intended to give him the benefit of pay fixation by way of notional promotion till 26.6.1990. It has to be noted that if the petitioner’s promotion was not made with effect from 1.5.1976 probably he would not have been entitled for the Post- graduate trained scale of pay after 2.10.1980 as the Government had straightway abolished concept of Post-graduate trained scale of pay by substituting it of a promotion on the selection grade as has been clearly specified in the Government resolution dated 30.10.1980. Thus, the grievance of the petitioner as with regard to non-payment of arrears for the period 1.5.1977 to 25.6.1990 in the opinion of this Court is wholly misconceived, inasmuch as whatever benefit was available to the petitioner during his service period, was extended to him and he being an employee of 9 a taken over school would not have been given the benefit than what was given to any other assistant teacher after the take over of the school on 2.10.1980. That being so, this Court would not find any merit in this application and the same is, accordingly, dismissed. (Mihir Kumar Jha,J.) Surendra/