IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7197 of 2002 RAM SUKUL RAM, son of Sri Sirohi Ram, resident of village Tari Post Office Vijyapar, District Azamyarh (U.P.), at present Assistant Teacher, Sri Jagroshan Singh High School, Asni, District Bhojpur (Ara) Bihar … Petitioner Versus 1. THE STATE OF BIHAR through its Chief Secretary, Govt. of Bihar, Old Secretariat, Patna 2. The Secretary, Secondary Education Department of Human Resources Department, Govt. of Bihar, New Secretariat, Patna 3. The Secretary, Finance Govt. of Bihar 4. The Special Secretary, Finance, Govt. of Bihar, Patna 5. The Reservation Commissioner, Department of Personnel and Administration, Reforms Govt. of Bihar, Patna 6. The Secretary, Department of Personnel and Administration Reforms, Govt. of Bihar, Patna 7. The Director, Administration, Secondary Education, Department of Human Resources Development, Govt. of Bihar, Budha Marg, Patna 8. The Regional Deputy Director Education Patna Division, Patna 9. The Headmaster, Sri Jagroshan Singh High School, Asni Bhojpur … Respondents. ----------- 5. 19.7.2010 Heard counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This writ application is for issuance of writ of mandamus or writs, direction or directions order or orders deem to be and proper in the facts and circumstances of the case against the order dated 16.4.2001 through 2 letter no.11 Annexure 7 passed by the Headmaster Sri Jagooshan Singh High School Asmi Bhojpur (Ara) by which it is ordered to the petitioner for recovery of the amount from the petitioner and it is directed to the petitioner to deposit the said amount through Treasury Challan. The said salary amount has been paid to the petitioner due to his promotion through letter no. 86 dated 8.2.1989.” In order to appreciate the prayer in question it would be also relevant to note that though the impugned order has been passed by the Headmaster of the school, it definitely is only a consequential in terms of the Resolution of the Finance Department dated 16.11.2000 and 30.12.2000. The impact of the impugned order is that certain junior selection grade granted to the petitioner by the District Accounts Officer in his Memo No. 2802 dated 12.7.2000 has been found to be illegal in terms of the aforementioned Resolution of the Finance Department. Counsel for the petitioner while assailing the aforementioned order would submit that the conclusion arrived by the 3 Headmaster, the Drawing and Disbursing authority, that the petitioner’s salary was wrongly fixed and therefore, consequential direction for depositing the amount in one lump-sum or in 20 intalments was wholly an unauthorized act. Counsel for the petitioner, however, on being asked that in absence of any interim order on 10.7.2002, whether the recovery has already been made from the petitioner or not, was very candid in his submissions that he has got no instruction from the petitioner after filing of the writ application. Counsel, however, submitted that there is no counter affidavit filed by the respondents and therefore, this Court should presume that whatever has been stated in the writ application is correct and since the petitioner has stated that deduction or wrong fixation was on account of constitutional mandate under Article 16 of the Constitution which now stands amended, the consequential decision taken by the authority would also be no longer in continuance. In this context he also refers to an interim order passed by this Court in 4 C.W.J.C.No. 322/2001 as with regard to restraining recovery from the petitioner of that case. He would submit that since the writ application, C.W.J.C.No. 322/2001, is still pending this court should adjourn the proceeding of this case sine die till a final decision is taken in C.W.J.C.No. 322/2001. Counsel for the State as usual has not filed any counter affidavit and is also not in any way prepared to render assistance to this Court. This Court, however, would find that far from supporting the fact as with regard to the impugned order being off shoot of the constitutional amendment in Article 16, in fact the impugned order seems to be a fall out of the direction issued by the Special Secretary to the Finance Department in his letter no. 7588 dated 27.10.2000 which reads as follows: i= la[;k 3@,l&25 ¼os0iq0½20@2000@7588&fo0 fcgkj ljdkj] foRr foHkkx iVuk] fnukad 27@10@2000 izs"kd] Jh jkes'oj flag] ljdj ds fo'ks"k lfpoA lsok esa] lfpo] ek/;fed f'k{kk] fcgkj] iVuk lfpo] izkFkfed ,oa tu f'k{kk] fcgkj] iVukA 5 fo"k;& foRr foHkkx ladYi la[;k 6022 fnukad 18-12-89 ds vkyksd esa ojh; ,oa izoj.k osrueku dh Lohd`frA egksn;] funs'kkuqlkj dguk gS fd jkT; ljdkj dks lwpuk feyh gS fd jkT; ds jktdh;d`r mPp fo|ky;ksa ds dfri; vuqlwfpr tkfr@vR;Ur tutkfr ds f'k{kdksa dks foRr foHkkxh; ladYi la[;k 6022 fnukad 18-12-89 }kjk fnukad 1-1-86 ls ykxw dsUnzh; osrueku esa duh; ,oa ojh; izoj dksfV izksUufr iznku dh x;h gS ,oa ,slh izkszUufr nsus esa vuqlqfpr tkfr@vuqlwfpr tutkfr ds ljdkjh lsodksa dks izksUufr esa NwV nsus ls lEcfU/kr dkfeZd ,oa iz'kklfud lq/kkj foHkkx ds izko/kkuks dk yksu Hkh fn;k x;k gSA ;g fu;ekdqy ugha gSA foRr foHkkxh; ladYi la[;k 6022 fo0¼2½ fnukad 18-12-89 ds }kjk jkT; ds jktdh;d`r fo|ky;ksa ds f'k{kdksa ds fy, fnukad 1- 1-86 ls dsUnzh; osrueku Lohd`r fd;k x;k gSA mDr ladYi dh dafMdk 13 ¼?k 1&21½ esa Li"V :I ls vafdr fd;k x;k gS fd bu f'k{kdksa dks izoj dksfV izksUufr@dkycn~/k izksUufr dh lqfo/kk fnukad 1-1-86 ls ykxw dsUnzh; osrueku esa vuqekU; ugha gSA jkT; ds jktdh;d`r fo|ky;ksa ds f'k{kdksa dks ladYi dh dafMdk&19 ,oa ladYi dh vuqlwph 11 esa ;Fkk of.kZr ewy dksfV esa 12 o"kksZ dh lsok ds i'pkr ojh; osrueku ,oa iqu% ojh; osrueku esa 12 o"kksZa dh lsok ,oa fu/kkZfjr ;ksX;rk izkfIr ds i'pkr~ ojh; osrueku ds 20 izfr'kr inksa ij gh izoj osrueku vuqekU; fd;k tk,xkA vr% jkT; ds jktdh;d`r fo|ky;ks ds ftu f'k{kdkas dh ladYi esa of.kZr dkykcf/k esa NwV nsrs gq, ,slh izksUufr;ka iznku dh xbZ gS] mls fujLr djrs gq, vkfFkZd Hkqxrku izkIr dh x;h jkf'k dh olwyh lqfuf'pr dj yh tk;A fo'oklHkktu g0@& jkes'oj flag ljdkj ds fo'ks"k lfpo] foRr foHkkxA From a bare reading of the said order which has also been mentioned in the impugned order passed by the Headmaster, it would become clear that upon Government decision to adopt Central Pay Scale with effect from 1.1.1986 the concept of time bound promotion for the teachers was already taken away and in place of that the Government had introduced promotion against 20% of post in senior pay scale upon fulfilment of certain terms and conditions 6 including completion of 12 years of service. The submission of the counsel for the petitioner, therefore, that a teacher belonging to Scheduled Caste would become eligible for grant of selection grade only on completion of 5 years of services seems to be not only an absurd proposition but also contrary to the Government decision. True it is that the Apex Court has held that the later constitutional amendment in Article 16 with regard to providing reservation in promotion to the members of Scheduled caste and Scheduled Tribe with retrospective effect is valid but then whenever a question of promotion would arise there would be only two modes either promotion by seniority against 20% post with reservation quota thereon or time bound promotion. In either case there would be fixed Kalawadhi which will have to be fulfilled by the teachers, inasmuch as in the case of the petitioner had been provided 12 years period for grant of senior pay scale. It cannot be said that a teacher belonging to Scheduled Caste category having special status for the purpose of promotion 7 would become entitled for promotion only on completion of 5 years. In this regard no such decision/ circular has also been brought to the notice of this Court by the counsel for the petitioner. That being so, this Court is also not impressed with the submission of the learned counsel for the petitioner that this Court should await the decision in C.W.J.C.No. 322/2001. This Court while hearing this case of the petitioner on 10.7.2002 had passed no such interim order nor had chosen to make this analogous or keep it pending subject to result of this case. That being so, this Court would not keep the matter pending only because some similar matter is alleged to be pending before this Court. The aspect which, however, would be necessary to be gone into by the superior authority to the Headmaster, who had passed the impugned order, would be as to whether the petitioner was rightly given the benefit of pay fixation in selection grade by the District Accounts Officer by his memo No. 8 2802 dated 12.7.2000. Let it be noted that such District Accounts Officer is only an authority with regard to examining pay fixation made by the authority pursuant to the Government resolution with regard to pay revision. The District Accounts Officer is an authority of the Education Department to consider and verify the grant promotion with its financial benefit of his own. He has to be strictly governed by the decision of the Finance Department and since there is a direct decision of the Finance Department dated 20.7.2000, any order passed by the District Accounts Officer cannot running contrary to the government notification cannot be upheld and that too to the detriment of the State ex-chequer. In that view of the matter, the whole issue with regard to fixation of pay benefit to the petitioner is remitted to the Director, Secondary Education in view of the fact that the petitioner is a teacher in a secondary school. If the Director, Secondary Education, would find that the pay fixation made in favour of the petitioner was correct 9 and still the Headmaster of the School had by an incorrect interpretation gone to reduce pay scale of the selection grade of the petitioner, he would restore the same back with consequential financial benefit but if he would find that the said action of the Headmaster was in keeping with the decision of the Finance Department as also other Government Rules and Circulars, a reasoned order to this effect would be passed by him. Such exercise may be completed by the Director, Secondary Education, at the earliest preferably within a period of six months from the date of receipt/ production of a copy of this order. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/