IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12002 of 2004 MD.WAZAIR son of late Abdul Aziz, resident of village-Ghaus Nagar, P.O.Ghaus Nagar, Via- Rampurhari, District-Sitamarhi. Versus 1. THE STATE OF BIHAR through the Secretary, Human Resource Development Deptt. Govt. of Bihar, Patna. 2. The Secretary, Human Resource Development Deptt. Govt. of Bihar, Vikash Bhawan Patna. 3. The Director, Primary Education Govt. of Bihar New Secretariat Patna. 4. The District Superintendent of Education, Sitamarhi District-Sitamarhi. 5. The District Superintendent of Education, Sheohar, District-Sheohar. 6. The District Provident Fund Officer, Sitamarhi, District-Sitamarhi 7. The District-Treasury Officer, Sheohar District- Sheohar. 8. The Accountant General, Bihar, Patna. 9. The Senior Account officer, in the officer of the Accountant General (A&E) II, Bihar, Patna. 10. Sri Raghunath Ram, the Principal, Govt. Middle School Tajpur at present also posted as Draw & Dispersing Officer of Govt. Urdu Middle School Sugia District-Sheohar. ----------- 13 26.07.2010 Heard Mr. Dinesh Jha, learned counsel for the petitioner, Mr. Prabhakar Tekriwal, learned Government Advocate No. 1 for the State and learned counsel for the Accountant General. The matter has come up for consideration on remand under order dated 9.4.2009 passed in L.P.A. No. 303 of 2009 requiring the disposal of the matter on merits. With the consent of the parties, the 2 matter has been taken up for disposal at the stage of admission itself. Admitted position is that the entire post retiral and other dues of the petitioner as found admissible by the authorities have since been paid to him during the pendency of the proceedings. The only issue that remains pending in the proceedings is whether the respondents are within their jurisdiction to effect recovery from the petitioner in the light of the objections raised by the Accountant General as contained in Annexures-4, 4/A and 5 and the order passed by the District Establishment Committee as contained in Annexure-6 dated 12.7.2003. The recovery from the petitioner had been stayed under the orders of this Court passed in the present proceedings on 22.7.2005. The facts giving rise to the present proceedings, in brief is that the petitioner was appointed as an Assistant Teacher vide order bearing memo No. 330 dated 24.1.1961 (Annexure-17 to the Supplementary Affidavit cum reply of the petitioner) and posted at Middle School, Madhaul under the District of Muzaffarpur. The petitioner at the time of 3 appointment held an intermediate qualification, as is manifest from the appointment order itself. The petitioner obtained training qualification on 19.8.1971 and was accordingly granted the matric trained scale vide memo No. 6712 dated 27.9.1973 of the District Superintendent of Education, Muzaffarpur. The petitioner was granted promotion in the intermediate trained scale with effect from 9.9.1977 being the date of his joining at Middle School Sugia, vide memo No. 990 dated 29.8.1977 of the District Superintendent of Education, Sitamarhi. The date of grant of intermediate trained scale was rolled back under the orders of the District Superintendent of Education, Sitamarhi vide order contained in memo No. 1672 dated 8.6.1996 with effect from 19.8.1971 (Annexure-1) in the light of the directions contained in the letter of the Regional Deputy Director of Education bearing No. 1838 dated 19.4.1990. The petitioner was also paid monetory benefits of the scale with effect from the said date which he continued to receive until his superannuation on 31.12.1996. Until the retirement of the petitioner no dispute was raised as regarding intermediate 4 scale granted to him and/or its rolling back to 19.8.1971. It is only after the superannuation of the petitioner, when his pension papers were forwarded for authorization by the Accountant General, that the impugned objections came to be raised, as contained in letter dated 8.3.2001(Annexure-4) and letter dated 5.10.2001(Annexure-4/A). According to the Accountant General, the rolling back of the date of grant of the intermediate trained scale to the petitioner from 9.9.1977 to 19.8.1971, was a case of grant of retrospective promotion entailing financial implications and which compulsorily required approval of the Finance Department. The District Superintendent of Education, Sheohar was directed to seek approval of the Finance Department in the matter, as it otherwise would be a case of excess drawal. Since after the objections raised by the Accountant General in the year 2001, nothing progressed in the matter and it is only after a lapse of about two years that the Director, Primary Education vide letter dated 22.3.2003 (Annexure-5)responding to the letter of the District Superintendent of Education, 5 Sheohar held the rolling back of the intermediate trained scale of the petitioner from 9.9.1977 to 19.8.1971 as incorrect and he was directed to place the matter before the District Establishment Committee. The District Establishment Committee in its meeting held on 12.5.2003 (Annexure-C), upon consideration of the matter held the rolling back of the intermediate trained scale of the petitioner to 19.8.1971 as not in accordance with law/rule and thus set aside the same. The matter having been resolved at the level of the District Establishment Committee, the pension papers of the petitioner for fixation thereof, was sent to the Accountant General and which has since been fixed by him. Although pursuant to the decision of the District Establishment Committee as contained in Annexure-C the scale of the petitioner was corrected and his pension and gratuity fixed but no recovery was effected in view of the interim order passed by this Court in the present proceedings on 22.7.2005. Learned counsel for the petitioner submits that there was no infirmity in the order dated 8.6.1996 whereby the petitioner was granted intermediate trained scale with effect 6 from 19.8.1971 for the reasons that the same was issued in the light of the directions contained in letter No.1838 dated 19.4.1990 of the Regional Deputy Director of Education, Tirhut Division, Muzaffarpur. It was submitted that the decision of rolling back the date of grant of intermediate trained scale was a conscious decision in the light of the circumstances that the petitioner indeed held an intermediate qualification on the date of his initial appointment. He thus submits that as the respondents themselves committed an error in not granting him the intermediate trained scale on the date of his appointment, the said mistake was corrected under the orders appended at Annexure-1. Learned counsel further submits that even the Accountant General in his objections as contained in Annexure-4/4A/5 did not find any illegality in the grant of trained scale to the petitioner except that the said conferment should have been after obtaining approval of the Finance Department as it was a case of retrospective promotion. He thus submits that the only recourse available to the respondents was to forward the case of the petitioner for approval 7 by the Finance Department but instead of doing so the Director, Primary Education vide his letter dated 22.3.2003 (Annexure-5) took a circuitous route and directed the matter for consideration by the District Establishment Committee. He thus submits that the reference of the issue for reconsideration by the District Establishment Committee was completely unwarranted and not in consonance with the opinion expressed by the Accountant General. Learned counsel further submits that even the objections raised by the Accountant General was out of context for the reason that the case of the petitioner was not a case of grant of promotion rather it was a case of conferment of a scale and as the petitioner was entitled for the intermediate trained scale on the date of acquiring the training qualification, which he did on 19.8.1971 hence it was not a case of retrospective promotion rather it was a case of correction/rectification of the error in the matter of fixation of pay scales. Learned counsel in support of his contention relies upon a letter of the District Superintendent of Education dated 13.9.2001 placed at Annexure-18 to the additional supplementary affidavit. 8 Mr. Prabhakar Tekriwal, learned Government Advocate opposing the contentions advanced on behalf of the petitioner submits that the order of grant of intermediate trained scale as contained in Annexure-1, with retrospective effect, was not only in the teeth of the relevant instructions issued by the Commissioner, Education dated 15.12.1976 (Annexure-A) but the same was also in violation of the restrictions set out in the Finance Department memo No.2074 (2) dated 4.4.1985. Learned counsel with reference to the instructions placed at Annexure-A relies upon the stipulations present at paragraph 2 (tha) and submits that all untrained teachers holding the matriculation or higher qualification were to be appointed in the matric untrained scale at the initial stage. He further submits that the relevant paragraph dealing with the promotions present at paragraph 2(III)(2)(ka) provided for filling of the I.A. Trained posts by way of promotion. He further with reference to the stipulations present at paragraph 2 (iii)(2)(gha) submits that the filling up of the post was on the basis of available vacancies. He thus submits that in terms of 9 the instructions aforesaid, the petitioner holding untrained intermediate qualification was initially appointed against a matric untrained scale but was granted trained scale on acquiring the training qualification on 19.8.1971 and was promoted to the intermediate trained scale upon availability of the vacancy on 9.9.1977 vide order dated 29.8.1977. Learned counsel further with reference to the Finance Department letter No.2074 dated 4.4.1985 (Annexure-B) submits that approval/concurrence of the Finance Department has been made compulsory in terms of the said circular. It was thus submitted that the District Superintendent of Education having failed to take note of the aforesaid relevant instructions before issuing the order dated 8.6.1996 (Annexure-1) whereby the petitioner was extended the benefit of I.A. Trained scale, with effect from 19.8.1971, had committed a serious illegality and the infirmity arising therefrom, was corrected by the District Establishment Committee in its meeting held on 12.5.2003(Annexure-C), as communicated in the letter of the District Superintendent of Education dated 12.7.2003 (Annexure-6). He thus 10 submits that there is no infirmity in the action of the authorities in setting aside the order as contained in Annexure-1 and the decision of the Establishment Committee was perfectly in accordance with law, the rules and the instructions on the issue. I have heard the arguments advanced by the learned counsel(s) appearing for the respective parties and have perused the materials on record of the proceedings. Undisputedly, the relevant instructions of the Education Department appended at Annexure-A to the counter affidavit manifests that all untrained teachers were to be initially placed at a matric untrained scale even if they held a higher qualification. Had the petitioner been a trained teacher at the time of appointment, the matter could have been different but the fact remains that even while he held an intermediate qualification, he was untrained at the time of his appointment and thus was appointed in a matriculate scale. The petitioner obtained training qualification on 19.8.1971 and whereupon he was granted a matric trained scale with effect from the said date under memo no. 6712 dated 27.9.1971 which was 11 followed by grant of intermediate trained scale with effect from 9.9.1977 under memo No. 990 dated 29.8.1977 of the District Superintendent of Education. This fact is eloquent from paragraph 7 of the counter affidavit. Even according to the respondents, the initial appointment of untrained teachers was to be made in untrained matric scale and after acquiring training qualification, the said teachers were entitled to grant of matric trained scale. The teachers holding I.A. qualification and above were entitled to promotion to the said scale subject to acquiring training qualification and availability of post. It is not the case of the respondents that there was no post of I.A. trained teacher available on 19.8.1971. The only objection is that the promotion was subject to availability of post. Although the rolling back of the date of grant of intermediate trained scale to the petitioner from 9.9.1971 to 19.8.1971, indeed was a case of retrospective promotion and required approval of the Finance Department as it entailed financial implications, as per the resolution dated 4.4.1985 (Annexure-B) but 12 despite the opinion of the Accountant General, the respondents did not choose to refer the matter to the finance department rather relegated the same to the District Establishment Committee. Although it is a fit case in which the matter should have been remitted back to the authorities for consideration of the case of the petitioner and seek post facto approval on the grant of the intermediate trained scale on grounds that the case of the petitioner is fully covered by the stipulations contained in the instruction relied upon by the State Counsel, placed at Annexure-A to the counter affidavit, but considering the long lapse of time and the fact that any remand at this stage would lead to a fresh exercise of discovery whether or not any intermediate trained scale post of Assistant Teacher was available on 19.8.1971, would only complicate the matter. Further from the records of the proceedings I find that despite the opinion of the Accountant General requiring recovery of the excess amount neither the Director, Primary Education while issuing his orders of placement of the case before the District Establishment Committee as contained 13 in Annexure 5 nor the decision of the District Establishment Committee as contained in Annexure-C and discussed in the letter of the District Superintendent of Education dated 12.7.2003 does contemplate any recovery. In view of the interim order of this Court as taken note above, the respondents were directed to refrain from taking any coercive steps against the petitioner. That no averment in the entire proceedings has been set out against the petitioner in having played any role in the matter of deriving the benefits of intermediate trained scale under the order dated 8.6.1996 (Annexure-1) is an additional ground for maintaining the restraint issued by this Court under the interim order passed in the proceedings and as a consequence whereof no recovery would be effected from the petitioner. However considering the long lapse of time I could not persuade myself to remit this matter for further reconsideration by the Finance department in the light of the opinion of the Accountant General. The writ petition is disposed of with the direction that no recovery shall be effected from the petitioner. 14 Needless to add that any other dues to which the petitioner is found entitled and may have remained pending by reason of pendency of this writ petition, shall be released and paid to the petitioner expeditiously and preferably within a period of three months from the date of receipt/production of a copy of this order together with admissible interest thereon. Bibhash ( Jyoti Saran, J.)