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B.N. AGRAWAL,J.

1. These appeals by special leave are directed against the common judgment of Patna High Court whereby a Division Bench of that Court dismissed letters patent appeals preferred by the appellants herein against that part of the judgment of the learned Single Judge in which it was decided that Office Order dated 16.11.2000 issued by the Finance Department, Government of Bihar, providing that fixation of pay scale on promotion of Assistant Teachers of the Government taken over Schools [the Nationalised Schools] in the State of Bihar shall be governed by Fundamental Rule 22(1)(a)(2) [FR.22(I)(a)(2)] instead of Fundamental Rule 22-C [FR.22-C], was valid. By the same judgment, the Division Bench allowed letters patent appeals preferred by the State of Bihar and set aside that part of judgment of the learned Single Judge whereby it was decided that Office Order dated 16.11.2000 would apply prospectively and not retrospectively and that recovery of the amount paid in excess in breach of FR.22(I)(a)(2) from the appellants was not to be made. While setting aside the judgment of the learned Single Judge and holding that, since Office Order dated 16.11.2000 only reiterated that the amended provisions of FR.22-C would apply and not FR.22-C, the question of its applicability with retrospective or prospective effect did not arise, the Division Bench directed that the excess amount paid to the employees be recovered without interest in at least 50 instalments provided such an employee had the tenure of 50 months or more so that such an employee did not suffer unnecessary brunt of a cut in the salary.

4. On 20.2.1993 the Finance Department, Government of Bihar, issued another Resolution whereby Clause 13(ii) of its earlier Resolution dated 18.12.1989

- 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.

24. The question that now arises is as to whether the amended provisions would have prospective or retrospective application. It is the submission of learned counsel appearing on behalf of the appellants - teachers that Office Order dated 16.11.2000, whereby instructions have been issued to fix the pay of the appellants- teachers as per the amended provisions of FR.22-C, i.e,. FR.22(I)(a)(2), should be applied prospectively and not retrospectively. Alternative submission in this regard is that since decision of the learned Single Judge in CWJC No. 2405 of 1997 holding that the amendment of sub-clause (ii) of Clause 13 of Resolution dated 18.12.1989 by Resolution dated 20.2.1993 in the case of teachers referred to in the said sub-clause would apply prospectively i.e., w.e.f. from 20.2.1993, had attained finality, the letters patent appeal against which having been dismissed by the Division Bench of the High Court and the State Government having not challenged the said decision before this Court, the question of making the Office Order dated 16.11.2000 effective from a date prior to 20.2.1993 does not arise. On the other hand, learned counsel appearing on behalf of the respondents - State of Bihar submitted that insofar as decision in CWJC No. 2405 of 1997 is concerned, it is not at all relevant in the case on hand as the challenge in that writ petition was to the amendment made in sub-clause (ii) of Clause 13 whereas in the case on hand, the cases of teachers covered by sub-clauses (iii), (iv) and (v) of Clause 13 are to be decided. Ordinarily, we would have held that the amended provisions of FR.22-C would apply to the appellants - teachers w.e.f. 16.9.1989, i.e., the date from which the amended provisions of FR.22-C were notified. But, in the peculiar facts and circumstances of this case and having regard to the fact that the State Government did not move this Court against the decision of the Division Bench whereby letters patent appeal preferred by the State Government challenging judgment of the learned Single Judge holding that Resolution dated 20.2.1993 amending sub-clause (ii) of Clause 13 of the Resolution would apply to the class of teachers referred to in the said sub-clause prospectively i.e., w.e.f. the date of issuance of the Resolution dated 20.2.1993, was dismissed, we hold that FR.22(I)(a) (2) shall apply to the teachers of Secondary Schools also w.e.f. 20.2.1993.