Syed Abdul Qadir & Ors vs State Of Bihar & Ors

3. We now proceed to the facts relevant for the disposal of these appeals. The appellants herein are the Assistant Teachers of the Nationalised Schools in the State of Bihar, administrative control of which lies with the Department of Human Resource Development, Government of Bihar. Exercising powers under Section 9 of the Bihar Non-Government Secondary School [Take Over of Management and Control] Act, 1981, the State Government vide Notification No. 12/B 8-760/75-398 dated 9th June, 1983 framed Bihar Nationalised Secondary School [Service Condition] Rules, 1983 [hereinafter referred to as `the 1983 Rules'] and under rule 3 of the 1983 Rules, the secondary school teachers of the Nationalised Schools were categorised. The hierarchy of promotion of these teachers was from the post of Assistant Teacher [Junior Grade] to the post of Assistant Teacher [Subordinate Grade], then to the post Assistant Teachers [Selection Grade] and finally to the post of Head Master, which was the highest promotional post. Rule 17 of the 1983 Rules provided that the pay scale of the teachers of the Nationalised Secondary Schools would be determined as per Bihar Service Code and Rules issued by the State Government from time to time. At that point of time, the time scale of these teachers was regulated under Rule 78 of the Bihar Service Code. In order to remove anomaly in the pay scales of teachers of the Nationalised Schools in the State of Bihar and in terms of Bipartite Agreement entered into between the State Government on the one hand and Secondary School Teachers Association and other Unions on the other, the Finance Department, Government of Bihar, vide its Resolution dated 18th December, 1989 took a decision with regard to revision of pay scales of teachers of the Nationalised Schools based on the recommendations of the 4th Pay Revision Committee appointed by the State Government, which recommendations were made applicable to all the teachers who were in service on 1st January, 1986 and those who joined or were promoted thereafter. Clause 13 of the said Resolution provided that revised pay scales indicated in Schedule II of the said Resolution would be extended to the teachers of Nationalised Schools and the provisions relating to such teachers in the Central Government regarding training, eligibility for appointment and promotion and other service conditions would be made applicable to them as far as possible. Sub-clause (ii) of Clause 13 provided that teachers who were in receipt of promotion or time bound promotion into the Junior Selection Grade and had completed 12 years of service in the basic grade prior to 1.1.1986 shall have their pay fixed in the revised senior scale as indicated in Schedule II of the Resolution. However, those teachers who got promotion or time bound promotion into the junior selection grade but had not completed 12 years of service in the basic grade on 1.1.1986, shall have their pay fixed in the revised scale in the basic grade only on 1.1.1986 and they were to be extended the benefit of promotion and fixation of pay in the senior scale with effect from the date they completed 12 years of service. Sub-clause (iii) of Clause 13 laid down that those teachers who received promotion into junior selection grade or first time bound promotion after 1.1.1986 but before 1.3.1989 shall be given the benefit of promotion for the purpose of fixation of their pay in the revised scale only w.e.f. the date they have received promotion or from the date on which they complete 12 years of service, whichever is later. Sub-clause (vii) of Clause 13 provided that the existing procedure of fixation of pay on promotion will cease to be applicable to teachers in the revised pay-scales w.e.f. 1.1.1986 and in their case the pay fixation on promotion would be governed by FR.22-C and instructions issued by the Central Government from time to time and not as per the existing procedure. It may be mentioned here that Department of Personnel and Training, Government of India, vide its Notification dated 30th August, 1989, published in the Gazette of India on 16th September, 1989, i.e., before Resolution dated 18th December, 1989 issued by the Finance Department of Government of Bihar came into force, deleted FR.22-C and in its place inserted FR.22(I)(a)(1) and FR.22(1)(a)(2).

- which provided that the category of teachers mentioned in the said clause would be extended the revised senior scale on completion of 12 years of service in the basic grade and that their pay in the senior scale shall be fixed as per FR.22-C - was amended to the effect that pay of these teachers, on completion of 12 years of service in the basic grade shall be fixed as per Rule 78(ii) of the Bihar Service Code. It may be mentioned that while under FR.22-C there was provision for grant of an additional increment on promotion to the higher post carrying duties and responsibilities of greater importance, there was no such provision under Rule 78(ii). However, despite the amendment aforesaid, the Human Resources Department of the Government of Bihar, vide Notification dated 24.6.1993, reiterated that pay fixation of teachers shall be made as per FR.22-C. Upon objection by the Audit Team of the Office of the Accountant General, Bihar, in regard to payment of pension, etc. to the concerned teachers on the basis of their last pay scale which was fixed as per FR.22-C and on being asked to provide information about the amendment/deletion of FR.22-C, the Kendriya Vidalaya Sangathan informed the Office of the Accountant General that pay fixation of teachers in senior/selection scale was to be made under FR.22(1)(a)(2), and that notional increment was not admissible. Some of the elementary school teachers, who were affected by the Resolution dated 20.2.1993, filed a Writ Petition before the High Court of Patna, being CWJC No. 2405 of 1997 challenging Resolution dated 20.2.1993. The learned Single Judge vide its judgment dated 17.9.1997 disposed of the writ petition and while holding that the Resolution dated 20.2.1993 would come into effect only prospectively, directed that the said Resolution was not applicable in the cases of the petitioners of that Writ Petition in the matter of fixation of pay on promotion/conversion granted prior to 20.2.1993, forbidding the respondent-State of Bihar from reviewing the fixation of pay of the petitioners made prior to the said Resolution. Aggrieved, the State of Bihar challenged the judgment of the learned Single Judge by way of letters patent appeal, which having been dismissed for failure on the part of the State Government for taking required steps, a special leave petition was preferred before this Court, which was also dismissed. After the dismissal of the special leave petition by this Court, the State of Bihar filed letters patent appeal challenging that very judgment of the learned Single Judge, against which the special leave petition had been dismissed. A Division Bench of the High Court vide its judgment dated 17th February, 2000 dismissed the letters patent appeal on merits, which judgment of the Division Bench was not challenged by the State of Bihar before this Court.

7. Aggrieved by the said Office Order, the appellants herein and others similarly situated, filed Writ Petitions before the High Court of Patna, inter alia, for quashing Office Order dated 16.11.2000 and for issuing directions to the respondents not to reduce their pay scale and to allow them to continue in the scale which was fixed as per FR.22-C. A learned Single Judge of the High Court, while holding that FR.22(1)(a)(1) and FR.22(1)(a)(2) would be applicable in fixation of pay scale of teachers of the Nationalised Schools and that Office Order dated 16.11.2000 would apply prospectively and not retrospectively, quashed that part of the Office Order whereby direction for recovery of amount paid in excess was given. The State of Bihar as well as the appellants herein and others similarly affected laid a challenge against the judgment of the learned Single Judge by way of letters patent appeals before the High Court. While the State of Bihar challenged that part of the judgment of the learned Single Judge whereby it was held that the Resolution dated 16.11.2000 would apply prospectively and not retrospectively and against the direction for no recovery of amount paid in excess, the appellants herein and others challenged that part of the judgment whereby it was held that FR.22(1)(a)(1) and FR.22(1)(a)(2) would apply in fixation of pay of the teachers of the Nationalised Schools. As stated above, a Division Bench of the High Court allowed the letters patent appeals preferred by the State of Bihar and dismissed those preferred by the appellants herein and others similarly situated, holding that the cases of the appellants - teachers would be governed by FR.22(1)(a)(2), their fixation of pay would be made according to the amended rule i.e, FR.22(I)(a)(2) and not according to FR.22-C, directing the State Government to recover the amount paid in excess in reasonable installments.

(vii) The existing procedure of fixation of pay on promotion will cease to be applicable to teachers in the revised pay scales with effect from 1st January, 1986. In their case the pay fixation on promotion shall be governed by rule 22-C of the Fundamental Rules and instructions issued by the Central Government for their teachers from time to time. The fixation of pay on promotion referred to in sub-paragraphs (ii), (iii), (iv) & (v) shall also be governed by those provisions."

29. Learned counsel also submitted that prior to the interim order passed by this Court on 7.4.2003 in the special leave petitions, whereby the order of recovery passed by the Division Bench of the High Court was stayed, some instalments/amount had already been recovered from some of the teachers. Since we have directed that no recovery of the excess amount be made from the appellant- teachers and in order to maintain parity, it would be in the fitness of things that the amount that has been recovered from the teachers should be refunded to them.

30. In the result, the appeals are allowed in part, the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellants - teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR.22-C would apply to the appellants-teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of Secondary Schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.