Patna High Court
The State Of Bihar & Ors vs Brajesh Kumar & Ors on 17 January, 2018
Author: Anil Kumar Upadhyay
Bench: Chief Justice, Anil Kumar Upadhyay
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.1870 of 2015
In
Civil Writ Jurisdiction Case No.2892 of 2013
======================================================
1. The State of Bihar.
2. The Principal Secretary, Education Department, Government of
Bihar, Patna.
3. The Director, Primary Education, Bihar, Patna.
4. The Deputy Development Commissioner-cum-Chairman, District
Education Establishment Committee, Begusarai.
5. The Regional Deputy Director of Education, Munger Division,
Munger.
6. The District Education Officer, Begusarai.
7. The District Programme Officer, (Establishment), Begusarai.
8. The Block Education Officer, Bachhawara Anchal, Distt -
Begusarai.
9. The Block Education Officer, Birpur Anchal, Distt - Begusarai.
10. The Block Education Officer, Garhpura Anchal, Distt -
Begusarai.
11. The Block Education Officer, Chhaurahi Anchal, Distt -
Begusarai.
12. The Block Education Officer, Tehara Anchal, Distt - Begusarai.
13. The Block Education Officer, Matihani Anchal, Distt -
Begusarai.
14. The Block Education Officer, Begusarai Anchal, Distt -
Begusarai.
15. The Block Education Officer, Mansoorchak Anchal, Distt -
Begusarai.
16. The Block Education Officer, Balia Anchal, Distt - Begusarai.
17. The Block Education Officer, Barauni Anchal, Distt - Begusarai.
18. The District Account Officer, Begusarai.
... ... Appellant/s
Versus
1. Brajesh Kumar S/o Late Ganesh Sahu R/o Vill - Kamaruddinpur, P.S. -
Begusarai Muffasil, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Makardahi, Anchal - Barauni, Distt
- Begusarai.
2. Rashmi Kumari Daughter of Ramchandra Sahu R/o Vill - Naulagarh, P.S. -
Bhagwanpur, , Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Mirganj, Anchal - Begusarai, Distt
- Begusarai.
3. Krishna Kant Chaurasia S/o Vishundeo Prasad Chaurasia R/o Vill & P.O. -
Birpur, P.S. - Birpur, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Ratauli, Anchal - Begusarai, Distt -
Begusarai.
4. Dilip Kumar Sharma S/o Govardhan Sharma R/o Vill - Mirjapur Bandwar,
P.S. - Begusarai Muffasil, Distt - Begusarai, At present posted and working as
an Assistant Teacher in Govt. Middle School Matihani, Anchal - Matihani,
Distt - Begusarai.
5. Vijay Kumar Arya S/o Radha Krishna Prasad R/o Vill & P.O. - Tajpur, P.S. -
Bhagwanpur, Distt - Begusarai, At present posted and working as an Assistant
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
2/18
Teacher in Govt. Middle School Dhabilapur, Anchal - Mansoorchak, Distt -
Begusarai.
6. Shiva Kant Chaudhary S/o Late Devi Chaudhary R/o Vill - Bari Balia, P.O. &
P.S. - Balia, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Middle School Hussainchak, Anchal - Balia, Distt -
Begusarai.
7. Ram Ratan Pandit S/o Ramdhani Pandit R/o Vill & P.O. - Begusarai, P.S. -
Sahebpur Kamal, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Durakpur, Anchal - Sahebpur
Kamal, Distt - Begusarai.
8. Binod Kumar S/o Late Jagdish Sah R/o Vill - Ajhaur, P.O. - Ajhaur, P.S. -
Chandpura, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Middle School Suja, Anchal - Begusarai, Distt - Begusarai.
9. Nand Kumar S/o Rameshwar Prasad Yadav R/o Vill - Paguraha, P.O. - Rajaur,
P.S. - Garhpura, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Kumharso, Anchal - Garhpura,
Distt - Begusarai.
10. Niraj Kumar S/o Bhuneshwar Chaurasia R/o Vill - Lakhua, P.O. Rampur
Samathu, P.S. & Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Milki, Anchal - Chhaurahi, Distt -
Begusarai.
11. Gulam Nabi S/o Md. Nasir R/o Vill - Fulwaria, P.O. - Dularpur, P.S. -
Teghara, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Middle School Fulwariganj, Anchal - Teghara, Distt -
Begusarai.
12. Rina Kumari Daughter of Ram Charitra Singh R/o Vill & P.O. - Dularpur, P.S.
- Teghara, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Upgraded Middle School Dularpur , Anchal - Teghara, Distt
- Begusarai.
13. Chandra Bhushan Sharma S/o Late Mahesh Sharma R/o Vill & P.O. -
Shahpur, P.S. - Begusarai Muffasil, Distt - Begusarai, At present posted and
working as an Assistant Teacher in Govt. Middle School Chhitraur, Anchal -
Matihani, Distt - Begusarai.
14. Anil Kumar S/o Late Surya Narayan Sah R/o Vill - Singhpur, P.S. -
Nayagaon, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Middle School Sankh, Anchal - Begusarai, Distt - Begusarai.
15. Prabhat Kumar S/o Late Chandra Kumar Rai R/o Vill - Narepur Tola
Dharampur, P.O. & P.S. - Bachhawara, Distt - Begusarai, At present posted
and working as an Assistant Teacher in Govt. Upgraded Middle School
Sabaura, Anchal - Barauni, Distt - Begusarai.
16. Md. Shamimuddin S/o Md. Juber R/o Vill - Mobarakpur Hasanpur, P.O. -
Karichak Chhapaki, P.S. - Birpur, Distt - Begusarai, At present posted and
working as an Assistant Teacher in Govt. Upgraded Urdu Middle School
Karichak, Anchal - Begusarai, Distt - Begusarai.
17. Md. Naushad Alam S/o Late Moinuddin R/o Vill - Mobrakpur Hasanpur, P.O.
- Babhangama, P.S. - Birpur, Distt - Begusarai, At present posted and working
as an Assistant Teacher in Govt. Upgaraded Urdu Middle School Laruara,
Anchal - Begusarai, Distt - Begusarai.
18. Sanjay Kumar Anshumali S/o Subalal Anshumali R/o Vill & P.O. - Naulagarh,
P.S. - Bhagwanpur, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Naulagarh, Anchal - Birpur, Distt -
Begusarai.
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
3/18
19. Prabhat Kumar S/o Late Baleshwar Paswan R/o Vill - Bhawanandpur, P.O. -
Panapur, P.S. - Birpur, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Primary School Chandwara, Anchal - Begusarai,
Distt - Begusarai.
20. Shiv Kumar Singh S/o Late Ramashray Singh R/o Vill - Parra, P.O. -
Saraunja, P.S. - Birpur, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Primary School Muradpur, Anchal - Birpur, Distt -
Begusarai.
21. Yogendra Kumar S/o Late Deo Suraj Mahto R/o Vill - Chhoti Balia, P.S. -
Balia, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Primary School Puwari Rajaura, Anchal - Begusarai, Distt -
Begusarai.
22. Kumari Nilam Daughter of Raghuvansh Singh R/o Vill - Barbighi, P.O. -
Hussain, P.S. - Balia, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Primary School Makardahi, Anchal - Barauni,
Distt - Begusarai.
23. Naresh Prasad Singh S/o Shri Kant Lal Singh R/o Vill - Murali, P.O. -
Bhawanipur, P.S. - Gopalpur, Distt - Begusarai, At present posted and
working as an Assistant Teacher in Govt. Middle School Noorjamapur,
Anchal - Balia, Distt - Begusarai.
24. Ragini Kumari Daughter of Dinesh Kumar R/o Vill - Pansalla, P.O. -
Bhairwar, P.S. - Begusarai Muffasil, Distt - Begusarai, At present posted and
working as an Assistant Teacher in Govt. Middle School Anu Pokharia,
Anchal - Begusarai, Distt - Begusarai.
25. Manoj Kumar Singh S/o Late Pram Sagar Singh R/o Vill - Rajaura, P.S. -
Begusarai Muffasil, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Upgraded Middle School Parra, Anchal - Birpur,
Distt - Begusarai.
26. Ram Prakash Paswan S/o Late Anik Paswan R/o Vill - Balia Bazar Patel
Chauk, P.S. - Balia, Distt - Begusarai, At present posted and working as an
Assistant Teacher in Govt. Middle School Lakhminia, Anchal - Balia, Distt -
Begusarai.
27. Pushpa Kumari Daughter of Shri Munilal Bhagat R/o Vill - Chhoti Balia
(Chakmarwan Tola), P.S. - Balia, Distt - Begusarai, At present posted and
working as an Assistant Teacher in Govt. Middle School Balia, Anchal -
Balia, Distt - Begusarai.
28. Wakil Prasad Rajak S/o Late Deo Narayan Rajak R/o Vill - Sondipi, P.S. -
Balia, Distt - Begusarai, At present posted and working as an Assistant
Teacher in Govt. Middle School Sadipur, Anchal - Balia, Distt - Begusarai.
29. The District Magistrate, Begusarai.
30. The District Treasury Officer, Begusarai.
31. The Headmaster cum Drawing and Disbursing Officers of the Petitioner's
School, Distt - Begusarai.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1031 of 2016
In
Civil Writ Jurisdiction Case No.2328 of 2015
======================================================
1. The State Of Bihar
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
4/18
2. The Principal Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Joint Secretary, Education Department, Govt. of Bihar,
Patna.
4. The Director, Primary Education, Govt. of Bihar, Patna
5. The Regional Deputy Director of Education, Patna. null null
6. The District Education Officer, Patna.
7. The District Programme Officer (Establishment), Patna.
... ... Appellant/s
Versus
1. Shivdani Prasad S/o late Ram Prit Ram, Resident of Village and P.O-
Salimpur , PS- Bakhtiarpur, District Patna Presently working as Assistant
Teacher, Primary School, Chanaki, Dhanrua, District Patna.
2. Nawal Kishore Singh S/o late Janak Singh Resident of Village- Akauna, PS
Punpun, District Patna Presently working as Assistant Teacher , Primary
School, Dumari Hindi, Punpun, District Patna.
3. Sharadendu Mishra Son of late ram Padarath Mishra Resident of Village-
New ManiChak, PS Masaurhi, District Patna, At Present posted as Assistant
Teacher, middle School, Sai Dhanarua, District Patna.
4. The Bihar Secondary School Examination Board through its Secretary, Patna.
5. The District Magistrate , Patna.
6. The District Account Officer, Patna.
7. The Treasury Officer, Patna.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1053 of 2016
In
Civil Writ Jurisdiction Case No.2269 of 2015
======================================================
1. The State of Bihar
2. The Principal Secretary, Education Department, Govt. of Bihar,
Patna.
3. The Joint Secretary ,Education Department, Govt. of Bihar,
Patna.
4. The Director, Primary Education , Govt, of Bihar, Patna.
5. The Regional Deputy Director of Education , Patna. null null
6. The District Education Officer, Patna.
7. The District Programme Officer (Establishment), Patna.
... ... Appellant/s
Versus
1. Sanjay Kumar Ambastha S/o Late Maheshwari Prasad Resident of Mahabir
Asthan Lane, Chowk Sikarpur, PS- Chowk, Patna City District - Patna
presently working as Assistant Teacher, Government Middle School, Kasba
Karimabad, Anchal - chowk Patna City, District- Patna.
2. Arun Rajak S/o Jodin Lal Rajak, Resident of Sri Krishna Vihar Colony, Beur
PS- Beur District- Patna at present working as Assistant teacher, Primary
School, Bhelwara, Chamar Toli, Sampat Chak, PS- Sampat Chak, Patna.
3. Satya Prakash Kumar son of Mishri Ram Resident of Ashok Nagar East, PS-
Kankarbagh, District- Patna , at present posted as Assistant teacher, Primary
School, Sampatchak (SC), Block- Phulwari Sharif, Patna.
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
5/18
4. Ramanuj Prasad S/o Shyam Narayan Prasad R/o Laxmi Nagar(E), Khemni
Chak, New Jaganpura, Subhash Nagar PS- Ram Krishna Nagar, District-
Patna at present posted as Assistant Teacher, Government Middle School,
Chakpool, Sampatchak, Patna.
5. Umakant Singh Son of Ram Pravesh Singh Resident of IOC Road, Sipara,
PS- Beur, District-Patna, present posted as Assistant Teacher, Government
Middle School, Sampatchak, District- Patna.
6. Ravi Ranjan kumar S/o late Braj Kishore Prasad. R/o Dundi Bazar, P.S-
Chaowk, Patnacity, District - Patna , at present posted as Asstt.Teacher,
Primary School, Nathuchak, Patna. Sadar, Patna.
7. Surendra Kumar S/o Late Shyamdeo Paswan R/o Gandhi Nagar, Boring
Road, House No. A18A, P.S Srikrishnapuri, District- Patna at present posted
as Asstt. Teacher, Primary School, Station Road Fatuha, Patna
8. Mahesh Kumar S/o Late Shiv Nandan Kumar R/o Village- Chak Daulat, P.S-
Lakhanpara , District- Patna at present posted as Assistant Teacher at Middle
School, Dumari, Fatuha, District- Patna.
9. Vinod Kumar S/o Naresh Paswan R/o village- Gowasa Sheikhpura, P.S.-
Pandarak, District- Patna at Present post as Asstt. Teacher at Madhya
Vidyalaya, Sonaru, Fatuha, District- Patna.
10. Shiv Pukar Prasad S/o Ram Swarath Choudhary R/o New Bishunpur Pakari,
Yadav Path, P.S.- Beur, District- Patna at present posted as Assistant Teacher
at Primary School, Allauddinchak, Punpun, District- Patna..
11. Prabhat Kumar Sinha S/o Late Ishwari Prasad R/o Mogalpura, Lala Toli, P.S-
Mogalpura, Patnacity at present posted as Assistant Teacher at Primary School
Lal Imali, Malsalami, Patnacity, District- Patna.
12. Madan Kumar S/o Late Jai Narayan lal R/o Nitya Nand Ka Kuan, Lodikatra,
P.S- Khajekalan, Patnacity, District- Patna at Present posted as Assistant
Teacher as Madhya Vidyalaya, Daulatpur, Fatuha,District- Patna,.
13. The Bihar School Examination Board through its Secretary, Patna.
14. The District Magistrage, Patna.
15. The District Account Officer, Patna.
16. The Treasury Officer, Patna.
... ... Respondent/s
======================================================
with
Letters Patent Appeal No. 1062 of 2016
In
Civil Writ Jurisdiction Case No.5807 of 2014
======================================================
1. The State Of Bihar, through the Principal Secretary, Department
of Educaiton, Govt. of Bihar, Patna.
2. The Director, Primary Education Department, Govt. of Bihar,
Patna.
3. The Regional Deputy Director of Education Muzaffarpur,
Division, Muzaffarpur.
4. The District Education Officer, District- Vaishali.
5. The District Programme Officer (Establishment), District-
Vaishali. ... ... Appellant/s
Versus
1. Birendra Rajak, s/o Late Mauje Rajak, village- Arnia, P.O. + P.S.- Jandaha,
District Vaishali, presently posted at New Primary School Dubha, Harijan
Tola, Sahdai Bujurg, District- Vaishali.
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
6/18
2. Amod Chaudhary , S/O Late Gauri Chaudhry, village + P.O.- Nawnagar, P.S.-
Bidupur, District- Vaishali, presently Posted at New Primary School
Chainpur, Baghel, Sahdai Bujurg, District Vaishali.
3. Sukhdev Ram, S/o Sri Rameshwar Ram, village- Harpur osti, P.O. + P.S.-
Mahua, District- Vaishali, presently posted at Upgraded Middle School,
Parsaunia, P.O.- Mahua, District-Vaishali.
4. Kailash Paswan, S/o Sri Kalicharan Paswan, village- Chehra Khurd , P.O.-
Bakshama, P.S.-Goroul, District- Vaishali, presently posted at Middle School,
Fatehpur, District- Vaishali.
5. Yogeshwar Ram. s/o Sri Lakhan Ram, Village- Chaknashir, P.O- Sukki, P.S.-
Patepur, District- vaishali, presently posted at New Primary School,
Dabhaich, Indira Awas Colony, Patepur, District- Vaishali.
6. Baban Kumar, S/o Krishna Prasad Paswan, village- Choti Yusufpur, P.S.-
Hajipur, P.S.- Industrial Area Hajipur, District- Vaishali, Presently Posted at
New Primary School Sindhia, Kamalpur, Katharia, Block- Bidupur, District-
Vaishali.
7. Vinod Ram, s/o Chinilal Ram, village- Bastikhojpur, P.O.- Pastara, P.s.-
Baligaon, District Vaishali, presently posted at New Primary School, Kuria
Chowk, Patepur, District- Vaishali.
8. Jairam Sahni, s/o Sri Nandlal Sahni, Village - Chak Bhairo , P.O.- Bhan
Borhan, P.S. Jandaha, Presently posted at New Primary School Chak
Abdulganni Singiahi, Jandaha, District - Vaishali.
9. The Bihar School Examination Board, Patna through the Secretary.
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. S.Raza Ahmed, Sr. Advocate
For the Respondent/s : Mr. Vinod Kanth, Sr. Advocate
Mr. Ray Shivajee Nath, Sr. Advocate
Mr. Ray Saurabh Nath, Advocate
Mr. Alok Anand, Advocate
Mr. Avanindra Kumar Jha, Advocate
Mr. Purushottam Kumar Jha, Advocate
For the Interveners : Mr. Chitranjan Sinha, Sr. Advocate
Mr. Ranjeet Kumar Yadav, Advocate
Mr. Umesh Kumar Mishra, Advocate
Mr. Abhinav Srivastava, Advocate
Mr. Ujjawal Bhushan, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE ANIL KUMAR UPADHYAY)
Date : 17-01-2018
Since in all the Letters Patent Appeals common question of
fact and law are involved, with the consent of the parties, they
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
7/18
have been heard together and are being disposed of by this
common judgment.
2. These Letters Patent Appeals have been preferred by
the State of Bihar under Clause 10 of the Patna High Court Rules
against the judgment and order dated 13.05.2015 passed by the
Writ Court whereby and whereunder while disposing of the batch
of writ petitions involving the issue of construction of expression
'compartmental candidates' and whether compartmental
candidates are entitled to be treated alike the candidates who have
passed the examination in first attempt or compartmental
candidates should be treated to have passed the examination in the
second attempt. The Writ Court on consideration of various
aspects and on examination of the word 'compartmental' defined
in Chambers Dictionary and various other materials, held out that
compartmental examination is in continuation of the main
examination and the result of the compartmental examination is to
be treated as the result of the examination held in 2004 and as such
the Writ Court concluded that the candidates who were allowed to
sit as compartmental examinee of 2004 examination in the year
2007 would be treated to have passed in the first attempt itself.
3. Mr. S.Raza Ahmed, Senior Counsel appearing on
behalf of the State assailed the judgment of the Writ Court and
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
8/18
submitted that in view of the judgment of the Division Bench in
the case of Chandra Kant & Ors. Versus The State of Bihar &
Ors: 2010 (4) PLJR 732, the candidates who passed the training
examination in the first attempt would be entitled to matric trained
scale with effect from 1.10.2003 and those who passed in the
second attempt would be entitled to trained scale from the date
they appeared and passed the training examination.
4. Mr. Raza submitted that in the present case the
candidates who appeared in training examination in 2004 failed in
one or two papers and they were allowed to sit in the
compartmental examination which was held in 2007 and as such
the compartmental examination in which the writ petitioners
appeared shall be treated as second attempt and as such the
candidates who appeared in the compartmental examination of
2004 or next examination are only entitled to the benefit of matric
trained scale with effect from the date they appeared in the
subsequent examination as in the present case the compartmental
examination was held in the year 2007 and as such they are not
entitled to matric trained scale with effect from 1.10.2003. Mr.
Raza submitted that under the Rules and in terms of the judgment
of the Division Bench in Chandra Kant (supra) passing of training
examination is the crucial date for entitlement of matric trained
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
9/18
scale. The benefit of cut off date of 1.10.2003 is applicable to only
those candidates who passed in the main examination in the first
attempt and not in the compartmental examination as trained pay
scale is only admissible to trained teachers and by no stretch of
imagination the entitlement of matric trained scale will be counted
for compartmental candidates with effect from 1.10.2003 as
admittedly the writ petitioners have passed the compartmental
examination held in the year 2007.
5. Referring to the aforesaid facts and circumstances,
Mr. Raza submitted that the Writ Court has committed error in
construing the candidates who appeared in the compartmental
examination of 2004 held in 2007 training examination to have
passed in first attempt. Referring to the resolution of the State
Government dated 5.1.2015 Mr. Raza submitted that the benefit of
matric trained scale with effect from 1.10.2003 is only admissible
to the candidate who appeared and passed the examination in the
year 2004 and it does not bestow to the candidates who appeared
in the compartmental examination of 2004 which was held in the
year 2007.
6. Mr. Vinod Kanth, Mr. Chittranjan Sinha, Sr.
Advocates and other Advocates who appeared on behalf of the
respondents-writ petitioners submitted that the present appeals are
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
10/18
wholly misconceived. Referring to the discussion of the decision
of the Writ Court, learned counsel appearing on behalf of the writ
petitioners, respondents in the present batch of Letters Patent
Appeals submitted that the expression 'compartmental' is always
relatable to the main examination irrespective of the examination
held in 2004 or 2007 as the compartmental examination was of the
year 2004. Learned senior counsels submitted that the distinction
between the 'compartmental examination' and the 'subsequent
examination' as second attempt was understood by the
respondents-appellants while conducting the 'compartmental
examination'. They submitted that in 2007 compartmental
examination was conducted for those candidates who failed in one
or two papers whereas next examination of the failed candidates
who were found not entitled to appear in the compartmental
examination was held for all the papers in the subsequent 2007
examination and as such the respondents have themselves adopted
two yardsticks while holding 2007 compartmental examination of
2004 for those candidates who failed only in one or two papers. In
other cases the failed candidates were required to appear in all the
papers in 2007 examination and distinction drawn by the
respondent-appellants herein is clinching on the point that the
compartmental examination was treated as part of the main
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
11/18
examination of 2004 and as such, the writ court has committed no
error in construing the candidates who appeared and passed the
compartmental examination as the candidates passed in the first
attempt.
7. The issue with regard to training of the untrained
teachers appointed on the recommendation of the Bihar Public
Service Commission has a chequered history. After amendment in
the rule in the year 1991 recruitment process has undergone
changes and under the amended rules appointment of trained or
untrained was permissible if they qualify in the examination
conducted by the Bihar Public Service Commission and as such
trained as well as untrained teachers were appointed on the
recommendation of the BPSC. The issue with regard to
appointment of untrained teacher was raised in a writ petition
which travelled upto the Apex Court and the Apex Court on
consideration of the entire facts and circumstances held out that
the State is required to ensure training of untrained appointed on
the recommendation of the BPSC. The judgment of the Apex
Court in Ram Vijay Kumar & Ors. Vs. The State of Bihar &
Ors.: (1998) 9 SCC 227 was the background on which the
untrained were sent for training and for the first time training
examination for in-service candidates was held in 2004 and result
Patna High Court LPA No.1870 of 2015 dt.17-01-2018
12/18
was subsequently published. Considering the decision of the Apex
Court in Ram Vijay Kumar's case and Chandra Kant's case
(supra) a decision was taken by the State to extend the benefit of
trained pay scale to the candidates who appeared in the
examination and in the first attempt passed the examination with
effect from 1.10.2003. In fact, the expression 'trained teacher' and
entitlement for induction in matric trained scale as per 1993
Promotion Rules is the date when individual is inducted in the
matric trained scale on passing training examination.
8. Since the respondents- appellants have made a
departure in extending the matric trained scale not from the date of
passing matric training but with effect from 1.10.2003, the court
has to examine the rational behind fixing the cut off date
1.10.2003. On scrutiny of the decision of the Apex Court and the judgment of this Court in the case of Chandra Kant (supra), it is seen that the cut off date of extension of benefit of matric trained scale is exception to the rule of granting of matric trained scale from the date anterior to actual passing of the training examination. The rational behind fixing this date is attributable to the failure of respondents in complying the orders of the Apex Court in the case of Ram Vijay Kumar, it was incumbent upon the State to send the untrained candidates for training and conduct Patna High Court LPA No.1870 of 2015 dt.17-01-2018 13/18 training examination at the earliest but they consumed their own time in holding examination and publishing the result. It is well settled that the State cannot take advantage of its failure to hold the examination within time and deny the benefit of trained scale. Reference in this connection may be made to the judgment of the Bombay High Court in the case of All India Groundnut Syndicate Vs. Commissioner of Income Tax: AIR 1954 Bom.
232. Similar view was expressed by the Apex Court in the case of State of Maharashtra Vs. Jagannath Achyut Karandikar: AIR 1989 SC 1133 where the Apex Court held out that one cannot suffer on account of lapse of the respondents in holding the examination regularly.
9. In All India Groundnut Syndicate vs. Commissioner of Income Tax: AIR 1954 Bom. 232, Hon'ble Mr. Justice Chagla, Chief Justice has laid down the principle that one cannot take advantage of his own default, which reads as follows:
"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 Patna High Court LPA No.1870 of 2015 dt.17-01-2018 14/18 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 per son 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."
10. In fact the Apex Court in the case of State Of Maharashtra vs Jagannath Achyut Karandikar : AIR 1989 SC 1133, in similar fact situation has held out that failure of the Government to hold examination for several years person who has not exhausted all his chances, could not be denied of his seniority as it is unreasonable and arbitrary to penalize such person for the default of the Government to hold examination every year. Paras 9 and 10 of the judgment is quoted below for ready reference.
9. This is a question of construction of the rules which form part of the scheme prescribing a condition for promotion. We do not have to reflect upon the rules of interpretation since they are well settled. They are now like the habits of driving which have become ingrained. They come to our assistance by instinct. We are to use the different rules meticulously to give effect to the scheme as we use the clutch, brake and accelerator for smooth driving. These rules are to be harmoniously construed. We should not concentrate too much on one rule and pay too little attention on the other. That would lead us astray and result in hardship. We must avoid such Patna High Court LPA No.1870 of 2015 dt.17-01-2018 15/18 construction. Rule 2 of the 1962 Rules no doubt states that a candidate who does not pass the examination at the end of nine years' service will lose his seniority. But this rule cannot be read in isolation as the High Court did. It has to be read along with the other rules since it is a part of the scheme provided for promotion. Rule 5 requires the Government to hold the examination every year. This rule is the basis of the entire scheme and the effect of other rules depends upon holding the examination. If examination is not held in any year, the rule 2 cannot operate to the prejudice of a person who has not exhausted all his chances. The person who has not exhausted the available chances to appear in the examination cannot be denied of his seniority. It would be unjust, unreasonable and arbitrary to penalise a person for the default of the Government to hold the examination every year. That does not also appear to be the intent or purpose of the 1962 Rules.
10. If the examination is not held in any year, the person who has not exhausted all the permissible chances has a right to have his case considered for promotion even if he has completed 9 years' service. The Government instead of promoting such persons in their turn made them to wait till they passed the examination. They are the persons falling into the category of "Late Passing". To remove the hardship caused to them the Government wisely restored their Patna High Court LPA No.1870 of 2015 dt.17-01-2018 16/18 legitimate seniority in the promotional cadre. There is, in our opinion, nothing improper or illegal in this action and indeed, it is in harmony with the object of the 1962 Rules.
11. In view of the aforesaid decision of the Bombay High Court and the Supreme Court, we have no hesitation in holding that since the respondents-appellants herein were in default in holding the examination, there was justification to grant the benefit of trained scale from 1.10.2003 i.e. anterior to the date of actual passing of the examination.
12. The second limb of argument in the present case is whether the candidate who appeared and passed the compartmental examination is treated to be a candidate passed in the first attempt or in second attempt. As discussed hereinabove, it is admitted factual position that in 2007 the respondents have conducted examination, compartmental as well as regular. Those who failed only in one or two papers have to appear in the compartmental examination whereas those who failed in more than two papers were directed to appear in the entire subjects of examination in the regular examination 2007. Thus, the respondents have maintained that the candidates appeared at the compartmental examination stands on different footing than those who appeared at the regular examination. The compartmental Patna High Court LPA No.1870 of 2015 dt.17-01-2018 17/18 examination of 2007 was in fact compartmental examination of 2004 and as such the result is to be treated as the result of 2004. In academic pursuit and in academic parlance the candidates passed in the compartmental examination are treated to have passed in the academic session of the main examination in which the candidates appeared as compartmental candidates.
13. On perusal of the judgment of the writ Court, we find that the writ court has examined the dictionary meaning, popular meaning and contextual meaning of the compartmental and on consideration of the entire facts and circumstances held out that the compartmental examination is to be treated as part of the main examination and the candidates who passed the compartmental examination are entitled to count his academic achievement as of 2004 examination. The candidates who passed the compartmental examination, under the aforesaid circumstances, were held out as the candidates who passed in the first attempt and are entitled to matric trained scale with effect from 1.10.2003. The elaborate discussion of the writ court for allowing the benefit to the writ petitioners treating them to have passed the 2004 examination does not call for any indulgence as the compartmental examination is always relatable to the main examination. The examination held in 2007, compartmental examination, is required to be treated as Patna High Court LPA No.1870 of 2015 dt.17-01-2018 18/18 examination of 2004 and such candidates passed out in compartmental examination cannot be treated as passed in the second attempt but in view of the aforesaid circumstances when the State itself has distinguished the case of compartmental candidate from the candidate who passed in the second attempt in regular 2007 examination, we find no error in the judgment of the writ court.
14. Accordingly, we uphold the judgment of the writ court and dismiss these Letters Patent Appeals.
(Rajendra Menon, CJ) ( Anil Kumar Upadhyay, J) spandey/-
AFR/NAFR NAFR CAV DATE NA Uploading Date 27.01.2018 Transmission Date