Patna High Court
Prakash Chandra Yadav & Anr vs The State Of Bihar & Ors on 5 July, 2018
Author: Anil Kumar Upadhyay
Bench: Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1581 of 2014
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1. Prakash Chandra Yadav Son Of Kailash Bihari Yadav Resident
Of Village - Lakdi Kola, P.O. Manjira, P.S. Banka, District -
Banka, At Present Posted As Trained Graduate Teacher Upgraded
Middle School, Bishara Anchal, Banka ( T.G.T. )
2. Murlidhar Barnwal Son Of Brihspati Modi Resident Of Village -
Shali, P.O. Remba, P.S. Hirodih, District - Giridih At Present
Posted As Trained Graduate Teacher Up Graded Middle School,
Janakpur Anchal - Chandan, District - Banka ( T.G.T. )
... ... Petitioner/s
Versus
1. The State Of Bihar Through Chief Secretary, Government Of Bihar
2. The Principal Secretary, Education Department, Government Of Bihar
3. The Joint Secretary To The Government Of Bihar, Education Department
4. The Director, Primary Education, Government Of Bihar, Patna
5. The District Education Officer, Banka, District - Banka
6. The District Programme Officer ( Establishment ), Education Department,
Banka
7. All The Block Education Officers, District Banka, The Education
Department, Banka
8. All The Concerned Drawing And Disbursing Officers, District - Banka
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Dinu Kumar, Advocate
Mr. Ritu Raj, Advocate
Miss Ritika Rani, Advocate
Miss Neha Kumari, Advocate
Mr. Rajesh Kumar Singh, Advocate
For the State : Mr. Gyan Prakash Ojha, GA-7.
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CORAM: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
Date : 05-07-2018
Heard learned counsel for the petitioners and learned
counsel appearing on behalf of the State.
2. The petitioners have filed the present writ petition for
quashing Memo No. 1400 dated 13.09.2013, whereby it was
decided that the benefit of one time relaxation was available only
to those teachers, who were appointed prior to 1994.
Patna High Court CWJC No.1581 of 2014 dt.05-07-2018
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3. The petitioners have raised the grievance that they
cannot be discriminated in the matter of grant of one time
relaxation. Mr. Dinu Kumar, learned counsel for the petitioners
submits that in no way the respondents can take decision to
withdraw the benefit granted to the petitioners.
4. Learned counsel for the petitioners, referring to the
judgment of the Division Bench of this Court in the case of
Chandrakant Vs. State of Bihar: 2010 (4) PLJR 732 and its
modification, submitted that the petitioners are entitled to the said
benefit as the respondents cannot deny the benefit to the
petitioners, who were appointed on compassionate ground.
5. On 15.05.2014, this Court has passed a detailed
order in this case, relevant part of which is quoted below for ready
reference:
"Pursuant to the order of this Court dated 06.05.2014,
Mr. R.S. Singh, Joint Director, Primary Education
currently also holding the charge of the post of
Director, Primary Education, having filed
supplementary counter affidavit, submits that the
Government is very seriously considering the ways
and means to sort out the problems relating to grant
of Matric trained pay scale to the different category
of teachers. In fact, this Court would find from
paragraph nos. 4, 5 and 6 of the supplementary
counter affidavit which is reading as follows:
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4. That pursuant to the order dated
06.05.2014and also the specific queries made by the Hon'ble Court in present case, in order to file a detailed counter affidavit and also as the connected file had been returned by Financial Department with the direction to send to the entire records dealing with the said issue particularly enclosing the previous resolution, that the said issue had been considered afresh in its entirety and as it had been realized that previously certain aspects of the matter had been overlooked, hence it is after a detailed consideration that a amended proposal has been moved to the Principal Secretary for approval, so that thereafter that the matter could be routed to Finance Department for further necessary action.
5. That at this stage it would be equally pertinent to submit that earlier in the modification petition (MJC No. 4075/2003) filed in LPA No. 412/2003 it had been observed by the Hon'ble Court that 'No adverse effect is caused upon seniority of the seniority of the concerned teachers by fixing of the date for grant of Matric Trained Scale"
whereas departmental notifications and Rules promulgated dealing with promotion of teachers categorically provides that seniority is to be reckoned from the date of grant of Matric Trained Scale. And further the said issue of seniority had not been adjudication in LPA NO. 1459/2013.
That thus as the earlier order passed in LPA No. 412/2003 and MJC NO.
Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 4/14 4075/2013 is to affect the inter-se seniority of the teachers hence the department proposes to seek clarification on the said issue by filing modification petition in LPA No. 1459/2013.
6. That the conditions incorporated in the amended proposal is as follows:
i. Such untrained teachers possessing higher qualification who had been appointed prior to 05.09.1997 in terms of Teacher Appointment Rule 1991, who had participated in teachers training examination in the year 2004 and were successful in the 1st attempt are to be notionally given matric trained scale from 05.09.1999 to 30.09.2003 and actual monetary benefit from 01.10.2003.
ii. Such untrained teachers possession higher qualification who had been appointed after 05.09.1997 in terms of Appointment Rule 1991 who had participated in the teachers training examination of 2004 and were successful in 1st attempt are to be given Matric trained scale w.e.f. 01.10.2003. iii. Such untrained teachers possessing higher qualification who had been appointed in terms of teachers Appointment Rule, 1991 who either had appeared in teachers training examination in the year 2004 and were not successful or had not appeared at the said teachers training examination of 2004 and had appeared in 2007 teachers training examination and has passed are to be given Matric trained scale from the Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 5/14 date of participating in the said training examination (31.07.2007).
iv. Seniority of untrained teachers possessing higher qualification will be reckoned from the date of grant of Matric trained scale (including notional). v. The conditions provided in clause 1 to 3 granting Matric trained scale will be subject to the result of modification (clarification petition proposed to be filed before the Hon'ble Court on the point of seniority in LPA NO. 1459/2013 and seniority is to be determined as provided in clause IV.
vi. To the aforesaid extent the Departmental Resolution No. 790 dated 29.07.2001 and Resolution No. 1400 dated 13.09.2013 will stand amended.
that the matter is under serious consideration of the State Government. This Court, however, would find that in the said consideration there is no reference to the category of teachers who were appointed on compassionate ground.
It has to be kept in mind that each and every appointment, on compassionate ground, had specific condition that the Matric trained pay scale shall be granted only after passing the teachers training examination. Thus, it would be necessary for the Government to consider this category of persons as with regard to their entitlement of Matric trained pay scale so that when a consolidated order, in terms of paragraph nos. 4, 5 and 6 quoted above, is issued by the Government, in form of removal of the difficulty Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 6/14 in the concerned rule, nothing remains unplugged for any category of teachers, who are now before this Court in thousands of writ petitions claiming Matric trained pay scale from different angles of orders."
The Court noticed that in decision making process the respondents are required to adopt uniform policy.
6. Pursuant to the order dated 15.5.2014, a counter affidavit was filed on 08.01.2015, wherein the respondents have taken the following stands:-
"3. That in continuation to the earlier affidavits filed in the present case it is further most respectfully submitted that in light of the orders passed by the Hon'ble Court in LPA No. 412/2003 and MJC (Modification) 4075/11 and LPA No. 1459/13 and on proper consideration of the provisions of Bihar Elementary School Appointment Rule 1991, the State Government decided to grant trained scale to untrained teachers possessing higher qualification (inclusive of compassionate appointees) appointed under 1991 Rule and accoardingly has issued Resolution contained in Memo No. 12 dated 05.01.2015 modifying the earlier Resolution No. 1400 dated 13.9.2013.
4. That the amended Resolution issued vide memo No. 12 dated 05.01.2015 reads as follows:
I. Such untrained teachers possessing higher qualification (inclusive of Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 7/14 compassionate appointees) who had been appointed prior to 5.9.97 in terms of Bihar Elementary School Appointment Rule, 1991, who had participated in teachers training examination in the year 2004 and were successful in the 1st attempt are to be notionally given Matric trained scale from 5.9.99 to 30.9.2003 and actual monetary benefit from 1.10.2003. II. Such untrained teachers possessing higher qualification (inclusive of compassionate appointees) who had been appointed after 5.9.97 in terms of Bihar Elementary School Appointment Rule, 1991 and who had participated in the teachers training examination of 2004 and were successful in the 1st attempt are to be given Matric trained scale w.e.f. 1.10.2003.
III. Such untrained teachers possessing higher qualification who had been appointed in terms of Bihar elementary school appointment Rule, 1991 (inclusive of compassionate appointees) who either had appeared in the teachers training examination of 2004 but were not successful or had not appeared at the said teachers training examination 2004 and had appeared in 2007 teachers Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 8/14 training examination and had passed, are to be given Matric trained scale from the date of participating in the said training examination (31.7.2007).
IV. The said scale is being granted to the untrained teachers possessing higher qualification on the condition that it would abide by the decision of this Hon'ble Court upon the Review petition proposed to be filed by the Education Department in connection with the order dated 8.8.2012 passed in MJC (modification) No. 4075/11."
7. The resolution enclosed with the counter affidavit dated 5.1.2015, Annexure-B protects the interest of a class of people as is evident from Clause 4, which is quoted below for ready reference.
4- Ekkuuh; mPp U;k;ky; ds ,y0ih0, la[;k 412@2003 esa fn;s x;s vkns"k ds vkyksd esa fcgkj izkjafHkd fo+|ky; fu;qfDr fu;ekoyh 1991 ds rgr fu;qDr vizf"kf{kr mPp ;ksX;rk/kkjh f"k{kdksa dks izf"kf{kr osrueku~ dh Lohd`fr gsrq iwoZ esa fuxZr ladYi la[;k 790 fnukad 29-07-2011 ,oa ladYi la[;k 1400 fnukad 13-09-2013 dks fuEu izdkj ls la"kksf/kr fd;k tkrk gS %& ¼i½ fcgkj izkjafHkd fo|ky; fu;qfDr fu;ekoyh 1991 ds vUrxZr fnukad 05-09-1997 ¼ekuuh; loksZPp U;k;ky;] ubZ fnYyh }kjk ,l0,y0ih0 la[;k 23187@1996 esa fnukad 05-09-1997 dks ikfjr vkns"k½ ds iwoZ fu;qDr mPp ;ksX;rk/kkjh vizf"kf{kr ¼vuqdEik lfgr½ f"k{kd ftUgksus f"k{kd izf"k{k.k ijh{kk 2004 esa lfEefyr gksdj izFke iz;kl esa mÙkh.kZ gq, mUgsa fnukad Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 9/14 05-09-1999 ls fnukad 30-09-2003 rd eSfVªd izf"kf{kr dk osrueku Notionally nsrs gq, fnukad 01-10-2003 ls foÙkh; ykHk fn;k tk;A ¼ii½ fcgkj izkjafHkd fo|ky; fu;qfDr fu;ekoyh 1991 ds vUrxZr fnukad 05-09-1997 ds mijkUr fu;qDr mPp ;ksX;rk/kkjh vizf"kf{kr ¼vuqdEik lfgr½ f"k{kd ftUgksusa f"k{kd izf"k{k.k ijh{kk 2004 esa lfEefyr gksdj izFke iz;kl esa mÙkhZ.k gq,] mUgsa Hkh fnukad 01-10-2003 ls eSfVªd izf"kf{kr osrueku fn;k tk;A ¼iii½ fcgkj izkjafHkd fo|ky; fu;qfDr fu;ekoyh 1991 ds vUrxZr fu;qDr mPp ;ksX;rk/kkjh vizf"kf{kr ¼vuqdEik lfgr½ f"k{kd ftUgksus f"k{kd izf"k{k.k ijh{kk 2004 esa lfEefyr gksdj mÙkhZ.k ugha gq,] vFkok oSls f"k{kd tks f"k{kd ijh{k.k ijh{kk 2004 esa lfEefyr ugh gq, vkSsj o'kZ 2007 esa vkgwr f"k{kd izf"k{k.k ijh{kk esa lfEefyr gksdj izf"k{k.k ijh{kk esa mÙkhZ.k gq,] mUgsa izf"k{k.k ijh{kk esa lfEefyr gksus dh frfFk ¼fnukad 31-07-2007½ ls eSfVªd izf"kf{kr osrueku fn;k tk;A ¼iv½ ,y0ih0,0 la[;k 412@2003 ds Øe esa ,e0ts0lh0 la[;k 4075@2011 esa fnukad 08-08-2012 dks ekuuh; mPp U;k;ky; ds }kjk ikfjr vkns"k ds fo:} f"k{kk foHkkx ds }kjk nk;j fd;s tkus okys review petition esa ekuuh; mPp U;k;ky; dk U;k; fu.kZ; ls vizf"kf{kr mPp ;ksX;rk/kkjh f"k{kdksa dks fn;k tk jgk osrueku izHkkoh gksxkA
8. This Court has occasion to come across to the disputes involving the issue of grant of matric trained scale. In certain cases the respondents have made pick and choose in the matter of sending the teachers for in-service training, juniors have been preferred and sent for training earlier and seniors were sent for training subsequently as a result of which, juniors appeared in the examination earlier and acquired training certificate earlier. Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 10/14 They were also granted the benefit of matric trained scale but without any fault of the senior teachers, who were not sent for training earlier, and they have to undergo teachers training subsequent to their juniors, have to suffer adverse effect of training in the subsequent academic sessions. In other cases, the teachers have appeared in the examination and cleared the same in the first instance. In addition thereto a lot of teachers who appeared in the first chance but failed to clear all the papers and they were allowed to appear in the compartmental examination. Their controversy was set at rest by the Division Bench holding that the compartmental examination shall be treated in continuity of the first examination and those who have passed compartmental examination should be treated to have passed in the first attempt.
The other category of teachers, who were sent for training but failed to clear the examination in first time, the State has granted the benefit of trained scale from the date they have acquired the training certificate. The court has noticed in most of the cases that it is only because of lapse on the part of the respondents in not providing training within time and the persons were subjected to adverse consequences.
9. Adverting to the present writ petition, the petitioners were appointed on compassionate ground in the year 1999 and Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 11/14 2000. They were sent for training in 2000 in academic sessions 2000-2001. Now they are aggrieved by the decision of the respondents granting the benefit of one time relaxation to a class of persons in the category to which the petitioners does not belong.
At the time the petitioners were inducted in service 1993 Promotion Rule was in place which was superseded by 2011 Promotion Rules and in 2011 Promotion Rules, specific conditions are enumerated for grant of promotion. In 2013 when the Education Department of the State Government realized the difficulty how to grant promotion on the post of Headmaster as the fidder post for consideration as grant of promotion to the Headmaster was dependent upon Kalawadhi and nobody was eligible in terms of Kalawadhi to answer the eligibility for appointment as Headmaster.
10. Under the aforesaid backdrop decision was taken in 2013 to grant one time relaxation. The decision to grant one time relaxation is in exigency of situation and formulated under the doctrine of 'necessity'. The relaxation is exception and not a Rule.
It is formulated by them furtherance of necessity to fill the vacancies of Headmaster. The relaxation cannot be made a rule.
11. The Court in the aforesaid circumstances, is not in a position to accept the contention of the petitioners that they are Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 12/14 also entitled to the benefit of one time relaxation vide memo no.
1400 dated 13.9.2013. The Court in the aforesaid circumstances is not inclined to grant any indulgence so far as relaxation in the promotion Rules, 2011 is concerned to enlarge the scope of exception in order to make the exception as Rule.
12. However the other decision granting benefit of trained pay scale in terms of 1993 Rules, the respondents cannot adopt two different yardstick one for other category of teachers and the other teachers appointed on compassionate ground. They are required to treat all teachers, who were appointed on the basis of direct recruitment or on the basis of compassionate ground on uniform basis. If they acquired the teachers training qualification, they are required to be treated as trained teachers in terms of the Promotion Rules.
13. Considering the resolution contained in Memo no. 790 dated 5.1.2015, the writ petition is disposed of with a direction to the respondents to follow the principle so far as appointees upto 1997 but the same principle will also apply for consideration of the case of other teachers who were appointed subsequently but not sent for training due to latches of the respondents as they cannot take advantage of their own lapse in Patna High Court CWJC No.1581 of 2014 dt.05-07-2018 13/14 sending the teachers for training belatedly and denying the benefit thereof.
14. In the judgment in the case of All India Groundnut Syndicate Ltd. Vs. Commissioner of Income Tax, Bombay City: AIR 1954 Bom. 232 the Chief Justice Chhagla has held out that no one can take advantage of his own mistake. The relevant part of the judgment reads as under:-
"But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under Sub-section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person--we take it that the Income-tax Department is included in that definition--can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because "I have committed a default and the right is lost because of that default."
15. Accordingly, the respondents have to treat the petitioners and alike on uniform basis and no discrimination is permissible on the ground that petitioners were appointed on compassionate ground if the petitioners hold the qualification of academic and training like other appointees Assistant Teachers.
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16. With the aforesaid observations and directions, the writ petition stands disposed of.
(Anil Kumar Upadhyay, J) spandey/-
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