Patna High Court - Orders
Rana Ajay Kumar Singh & Ors vs The State Of Bihar & Ors on 28 April, 2014
Author: Shivaji Pandey
Bench: Shivaji Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5799 of 2001
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1. Rana Ajay Kumar Singh, son of late Jagarnath Singh, In-charge
Headmaster in High School, Umta Dharnai, Jahanabad, District-
Jahanabad.
2. Gauri Shankar Pathak, son of Sri Sidhdhaeshwar Pathak, Teacher in
High School, Umta Dharnai, Jahanabad, District- Jahanabad.
3. Birendra Kumar Singh, son of late Rampati Singh, Teacher in High
School, Umta Dharnai, Jahanabad, District- Jahanabad.
4. Raj Bihari Sharma, son of Man Bahal Sharma, Teacher in High school,
Umta Dharnai, Jahanabad, District Jahanabad.
5. Afjal Hussain, son of late Fazal Hussain, Teacher in High School,
Machhil, Jahanabad, District Jahanabad
6. Jagnarain Singh, son of late Chandra Deo Singh, Teacher in High
School, Machhil Jahanabad, District Jahanabad
7. Bijay Kr. Sinha, son of late Ram Govind Singh, Teacher in High
School, Kormathu, Gaya, District Gaya.
8. Krishna Chandra Verma, son of late Harihar Pd. Singh, Teacher in High
School, Tehta, District Jahanabad
9. Upendra Pathak, son of late Jagmohan Pathak, Teacher in Girls High
School, Tikari, District Gaya.
10. Bimaldeo Pd. Yadav, son of late Lekha Pd. Yadav, Teacher in Shiv Ram
Bharti, High School, Tankuppa, Gaya
11. Sitaram Singh, son of late Dudheshwar Singh, Teacher in High school,
Bodh Gaya, District- Gaya
12. Damodar Sharma, son of Sri Ram Kshapit Sharma, Teacher in Tikari
Raj Inter School, Gaya, District-Gaya
13. Surendra Sharma, son of late Badrinath Sharma Teacher in Shattanand
High School, Sulebatta, Gaya, District Gaya
14. Bijay Bahadur Singh, son of Sri Yugal Kishore Singh, Teacher in High
School, Rasalpur Manpur, Gaya, District- Gaya
15. Kedar Nath Mishra, Sudhanshu, son of late Ram Prasad Mishra,
Teacher in Prakash Vidya Mandir, Tikari, Gaya, District Gaya
16. Chandra Deep Singh, son of Sri Rajdeo Singh, Teacher in High school,
Amarut, Gaya, District- Gaya
17. Siyasaran Malakar, son of late Chhotan Malakar, Teacher in High
School, Bodh Gaya, District- Gaya
18. Birendra Kumar Singh, son of late Raghuwar Dayal Singh, Teacher in
Sri Shiv Ram Bharti, High School, Tankuppa, Gaya, District- Gaya.
19. Ramdas Singh, son of Dwarika Singh, Teacher in Sri Shivram Bharti
High School, Tankuppa, Gaya, District- Gaya
20. Ravindra Kumar Singh, son of Rameshwar Singh, Teacher in Shri Shiv
Ram Bharti High School, Tankuppa, Gaya
21. Rajendra Prasad, son of Ram Dhani Ram, Teacher in Samata High
School, Krantinagar, Guraru, Gaya, District- Gaya
22. Rama Gupta, son of Krishnajee Prasad, Teacher in Anugrah Kanya High
School, Gaya, District- Gaya
23. Ramdeep Prasad, son of Dewal Prajapat, Teacher in High school,
Kariyadpur, Gaya, District- Gaya
24. Ramchandra Singh, son of late Jagdish Singh, Teacher in Balika
Uchchya Vidyalaya, Rafiganj, Aurangabad
Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014
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25. Sahdeo Singh, son of Ram Chandra Singh, Teacher in Balika Uchchya
Vidyalaya Rafiganj, District Aurangabad.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. The Secretary, Finance Department, Government of Bihar, Patna.
3. The Special Secretary, Finance Department, Government of Bihar,
Patna.
4. The Secretary, Secondary Education, Government of Bihar, Patna.
5. The Additional Finance Commissioner, Finance Department,
Government of Bihar, Patna.
6. The Director Secondary Education, Government of Bihar, Patna.
7. The Regional Deputy Director of Education, Magadh Division, Gaya.
8. The Additional Education Director, Patna and Magadh Division, Patna
9. The District Education, Officer, Gaya, District Gaya
10. The District Education Officer, Jahanabad, District Jahanabad
11. The District Education Officer, Aurangabad, District Aurangabad
12. The Headmaster, High School, Umta Dharnai, Jahanabad District
Jahanabad
13. The Headmaster, High School, Machchil, Jahanabad, District Jahanabad
14. The Headmaster High school, Kormathu Gaya, District- Gaya.
15. The Headmaster High School, Tahta, Jahanabad, District Jahanabad
16. The Headmistress, Balika Uchchya Vidyalaya Tikari, Gaya, District-
Gaya
17. The Headmaster, Shivram Bharti, Uchchya Vidyalaya, Tankuppa, Gaya,
District- Gaya
18. The Headmaster High School, Bodh Gaya, District Gaya
19. The Headmaster, Tikari Raj Inter School, Gaya, District Gaya.
20. The Headmaster, Shattanand High school, Sulebatta, Gaya, District-
Gaya
21. The Headmaster High School, Rasalpur, Manpur, Gaya, District- Gaya
22. The Headmaster, Prakash Vidya Mandir, Tikari, Gaya, District- Gaya.
23. The Headmaster High School, Amarut, Gaya, District- Gaya
24. The Headmaster, Samata Uchchya Vidyalaya Kranti Nagar, Guraru,
Gaya, district- Gaya.
25. The Headmistress, Anugrah Kanya Uchchya Vidyalaya, Gaya, District
Gaya.
26. The Headmaster, High School, Kariyadpur, Gaya, District- Gaya
27. The Headmistress, Balika Uchchya Vidyalaya, Rafiganj, District
Aurangabad.
... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Prasad Singh, Sr. Advocate.
Mr. Mukesh Kumar Singh, Advocate.
For the State :
Mr. Sunil Kumar Mandal, SC 24
Mr. Arjun Prasad, AC to SC 24.
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER
Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014
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5 28-04-2014Heard learned counsel for the petitioners and learned counsel for the State.
2. In the present writ petition the petitioners have sought a relief for quashing the letter no.7946 dated 16.11.2000 (Annexure-1) issued under the signature of the Special Secretary, Finance Department, Government of Bihar (respondent no.3) and letter no.9038 dated 30.12.2000 (Annexure-2) issued under the signature of Additional Finance Commissioner (Respondent no.5) and further to quash the follow-up office orders in pursuance of earlier office order and in that pursuance respondents have issued the orders vide letter nos. 16 dated 27.3.2001, 6 of 2001 dated 7.4.2001, 41 dated 12.4.2001, 38 dated 9.4.2001, 15 dated 9.4.2001, 17 dated 7.4.2001, 25 dated 7.4.2001, letter no.542 dated 9.4.2001, 31 dated 9.4.2001, 112 dated 30.12.2000, 33 dated 7.4.2001, 42 dated 7.4.2001, 24 dated 10.4.2001, 541 dated 10.4.2001, 23 dated 2.4.2001 and letter no.24 dated 12.4.2001 (Annexure-3 series) by the aforesaid letters it has been held that pay scale of the petitioners was wrongly fixed in terms of Rule 22© of the Fundamental Rule rather the pay scale ought to have been fixed in terms of Rule 22(1)A (2) of the Fundamental Rule and directed for recovery of excess Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014 4 amount paid to the petitioners.
3. Petitioners were appointed as Assistant Teachers and they were either granted senior grade scale or first time bound promotion by the Regional Director of Education in pursuance of resolution no.6022 dated 18.12.1989 those who have completed 12 years of service in terms of Rule 22© of the Fundamental Rule. It appears that the Government of Bihar accepted the recommendation of 5th Pay Commission and made it effective with effect from 1.1.1986 but the actual payment was required to be paid with effect from 1.3.1989.
4. In terms of Class (ii) it has been provided that all these teachers who were in receipt of promotion or time bound promotion into junior selection grade and had completed 12 years of service and his basic grade prior to 1.1.1986 shall have their pay fixed in the revised senior scale as indicated in schedule II. Those teachers who were in receipt of time bound promotion into junior selection grade prior to 1.1.1986 had not completed 12 years of service in the basic grade on that date shall also have their pay fixed in the revised scale in the basic grade only fixation of pay in senior scale shall be with effect from the date they have completed 12 years of service. It has been provided that those teachers Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014 5 who were in receipt of promotion or time bound promotion into junior selection grade and completed 12 years of service on basic grade prior to Ist January, 1986 but before Ist March 1989 shall have their pay fixed in the revised senior scale from the completed 12 years. By clause (v) the time bound promotion which was granted was withdrawn.
5. By clause (vii) it has been provided that the existing procedure of fixation of pay on promotion will cease to be applicable to the teachers in the revised pay scale with effect from 1.1.1986 and the pay fixation on promotion will be governed by Rule 22© of the Fundamental Rule 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) and (vii) of Clause-13 shall also be applicable to teachers.
6. In pursuance of resolution no.6022 dated 18.12.1989 a further resolution vide Memo No.1000 dated 20.2.1993 (Annexure-6) was issued by the Government of Bihar where the criteria has been fixed as to how the scale of pay of teachers would be fixed and also provided that their pay scale would not be fixed in terms of Rule 22© of the Fundamental Rule rather the scale of pay would be fixed in terms of Rule Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014 6 78(II) of the Bihar Service Code and thereafter the Finance Department, Government of Bihar issued letter no.7946 dated 16.11.2000 whereby it has been held that the pay of the teachers would be fixed in terms of Rule 22(1)(A)(2) of the Fundamental Rule not in terms of Rule 22(C) of the Fundamental Rule, thereafter further notification was issued by Finance Department vide letter no.9038 dated 30.12.2000 (Annexure-2) by which a direction was issued to take action in terms of resolution no.7946 dated 16.11.2000. Thereafter at the lower level letters contained in Annexure 3 series were issued whereby it has been directed that the pay was wrongly fixed in terms of Rule 22(C) of the Fundamental Rule and directed for realization of excess amount paid to them in 20 installments.
7. The aforesaid orders were challenged before this Court vide C.W.J.C. No.2405 of 1997 and this Court after examining the material on record vide order dated 17.9.1997 (Annexure-7) has held that resolution dated 20.2.93 with regard to retrospective effect is incorrect and made it prospective. The same was challenged in L.P.A. No. 251 of 1998 and the Division Bench also refused to interfere in the matter.
Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-20147
8. The matter traveled upto the Hon'ble Supreme Court in the case of Syed Abdul Qadir and others Vs. State of Bihar and others, reported in 2009(2) P.L.J.R. 74 SC where Hon'ble Supreme Court held that pay would be fixed in terms of Rule 22(1)(A) (2) instead of Rule 22(C) of Fundamental Rule. The Hon'ble Supreme Court has discussed the matter and held that letter dated 20.2.1993 with regard to prospectivity cannot be held to be bad and affirmed the view of the High Court that the said notification would be made applicable with effect from 20.2.1993. The Hon'ble Supreme Court has further held that excess amount that has been paid to the teachers was not because of any misrepresentation or fraud on their part and the teachers had no knowledge that the amount that was being paid to them was more than what they were entitled to. The Finance Department had in its bona fide mistake on their part made excess payment was the result of wrong interpretation of the rule that was applicable to them for which they cannot be held responsible. Rather the whole confusion was because of inaction, negligence and careless of the officials concerned of the Government of Biahr and the Court has held that there cannot be a recovery of excess amount paid to them as it will be inequitable to ask to refund Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014 8 the said amount. It will be apt to quote paragraph 26 of the aforesaid judgment:
"26. From the record that has been produced before us, there is not an iota of doubt that officials of the State Government, responsible for issuing Resolution dated 18.12.1989, were ignorant of the amended provisions of the FR.22-C and it is their inaction, negligence and carelessness which has created all the chaos in the case on hand. Further, until January 1999, the officials of the Education Department of the Government of Bihar were unaware of the amendment in the said rule until the Accountant General, Government of Bihar, on a query being made to him by the Director of Secondary Education, who is the Head of the Department of the Secondary Education in the State of Bihar, vide his letter dated 8.1.1999, responded to the said query that the officials of the Education Department came to know of the amendment in FR. 22-C. That apart, it also appears from the record produced before us that while the Finance Department of the Government of Bihar was in favour of making the amended provisions of FR.22-C applicable to the appellants-teachers after having come to know that the said rule did not exist and had been substituted, the Department of Human Resource Development, Government of Bihar, wanted to apply the un-amended provision to the appellants-teachers so as to make available the benefit of additional increment provided for under FR 22-C to its teachers, unaware of the fact that even under FR 22-C they were not entitled to the additional increment as they were not discharging duties and responsibilities of greater importance on the promoted post. This further goes on to show that the authorities in the State of Bihar were not even aware of the basic requirement for grant of additional increment and the decision appears to have been taken without proper application of mind.Patna High Court CWJC No.5799 of 2001 (5) dt.28-04-2014 9
Otherwise, there was no reason for the Finance Department to state in the counter affidavit filed before the High Court that any affidavit filed on behalf of the Education Department may be ignored as Finance Department was the competent authority. In this very affidavit the Finance Department while admitting that the pay fixation by the Education Department was wrong, stated as under:-
"....the fixation of pay under Fundamental Rule 22-C has wrongly been made as it was not in existence. Pay fixation on the basis of a non- existent rule is a bona fide mistake."
10. In the present case also there is no allegation of misrepresentation or fraud committed by the petitioner and the payment has been made on account of wrong interpretation of the Rule. This Court holds that there cannot be any recovery of the excess amount paid to the petitioners.
11. In this view of the matter Annexures 3 series by which direction for recovery of excess amount was made are hereby quashed.
12. Accordingly this writ petition is partly allowed.
Vinay/- (Shivaji Pandey, J)