KESHARI NANDAN SINGH, S/O LATE SHAMBHU PRASAD SINGH, ACTING HEADMASTER, SHRI VIDYA SUNDAR HIGH SCHOOL, AMLORI SARSAR, P.S. MUFASSIL DISTRICT SIWAN Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, invoking writ jurisdiction of this Court under Art. 226 of the Constitution of India, has prayed for issuance of appropriate writ for quashing of the order contained in memo no. 17 (vidhi) dated 5.1.2011 passed by the Director, Secondary Education, Government of Bihar (Annexure-‘1' to the writ petitioner) whereby he has rejected the application of the petitioner for restoration of the Post Graduate scale which he was receiving since the date of his initial appointment i.e. 10.7.1978. The order impugned was passed in view of the order dated 12.7.2010 passed in CWJC No. 5841 of 2002.

(2.) The petitioner's case is that he was appointed as Assistant Teacher by the Secondary Education Board in the year 1978. At the time of his appointment he was B.Sc. Hons. Trained and as per extant rules there being no Post Graduate Teacher, he was granted P.G. Scale since he was the only Science Teacher having qualification of B.Sc. Trained Graduate. The petitioner by the order issued under the signature of the District Education Officer, which was issued in consonance with Government Resolution dated 24.3.1967, was granted the P.G. Scale and thereafter he started getting P.G. Scale i.e. Rs. 415 - 745.00, since his initial appointment dated 10.7.1978. Earlier the School, where he was appointed, was recognised. Finally in view of ordinance issued by the Government of Bihar in the year 1980 which subsequently culminated in the Act as Bihar Act No. 33 of 1981, the said School was taken over and all the teachers working in the said school recognised by the Board became Government employees. The petitioner was getting P.G. Trained Scale right from his appointment, however when recommendation of 4th Pay Revision Commission Report was introduced with effect from 1.4.1981, his scale was reduced to the Trained Graduate. Thereafter the petitioner represented to the Additional Director, Tirhut-cum-Saran Division through proper channel and finally, the Additional Director by its order contained in memo no. 1194-98 dated 17.9.1992 (Annexure - ‘2' to the writ petition) restored the P.G. Scale of the petitioner. Even difference of pay scale was also directed to be paid, which was paid to the petitioner (Annexure-‘2' to the writ petition). However, without any notice to the petitioner, the Director, Secondary Education, vide its memo no. 388 /legal/dated 3.5.1993 (Annexure-‘4' to the writ petition) cancelled the order of the Additional Director. It is the case of the petitioner that before issuance of order dated 3.5.1993 the petitioner was not noticed. In the meanwhile, in an identical situation, aggrieved with such action of the authority concerned one Sri Ram Nath Singh and Sri Jailal Shah filed writ petitions bearing CWJC No. 5844 of 1993 and 2144 of 1993 respectively. Whereas the petitioner had not filed any writ petition. The writ petitions filed by the aforesaid two teachers were disposed of and remitted back to the Director for filing fresh representation and only thereafter petitioner also represented before the Director, Secondary Education vide its letter dated 30.10.1993. The Director, Secondary Education thereafter vide its order contained in memo no. 424 dated 16.2.1994 (Annexure-‘7' to the writ petition) again restored the P.G. Scale which was earlier approved and confirmed by the Director and direction was given to make payment of the scale of Post Graduate vide its order contained in memo no. 424 dated 16.2.1994 (Annexure-‘7' to the writ petition). It has been claimed by the petitioner that again without any rhyme and reason the same authority i.e. Director, Secondary Education cancelled the order dated 17.9.1992 which was earlier issued by the Additional Director Education, Tirhut Division and order dated 16.2.1994 whereby petitioner's Post Graduate scale was restored. This time the Director, Secondary Education by its order contained in memo no. 1406 dated 24.4.2002 (Annexure-‘9' to the writ petition) directed for restoring the order dated 3.5.1993 and directed for realisation of excess paid amount in twelve instalments. Aggrieved with the order of the Director, Secondary Education i.e. 24.4.2002 the petitioner was constrained to file a writ petition vide CWJC No. 5841 of 2002. It has been stated that at the initial stage itself on 24.6.2002 a bench of this court passed an interim order to the effect that till further orders no recovery could be made pursuant to order dated 24.4.2002 (Annexure-‘9' to the writ petition). The said writ petition i.e. CWJC No. 5841 of 2002 was finally disposed of on 12.7.2010 (Annexure-‘10' to the writ petition). This court quashed the impugned order i.e. order dated 24.4.2002 and remitted back the matter to the Director, Secondary Education with a direction to issue notice to the petitioner and hear him and pass a fresh order. Thereafter, the impugned order has been issued i.e. Annexure-‘1' to the writ petition and claim of the petitioner for restoration of his Post Graduate scale has been rejected. During the pendency of the writ petition the petitioner superannuated with effect from 31.7.2011. Even after filing of the writ petition the District Programme Officer, Siwan after issuance of authority letter from the Accountant General, Bihar regarding pension, gratuity etc. by its letter no. 2216 dated 12.6.2012 directed the Treasury Officer, Siwan to adjust Rs. 4,99,765.00 on the ground that the petitioner had received excess pay. Thereafter the petitioner by way of filing an interlocutory application vide I.A. No. 5569 and 2013 has brought on record the order of the District Programme Officer dated 12.6.2012 as Annexure-‘13'. Again by filing supplementary affidavit the petitioner has brought on record pension payment order to substantiate that from the death-cum-retiral gratuity i.e. Rs. 7,46,378.00 the Treasury Officer has already deducted Rs. 4,99,765.00 and only payment to the tune of Rs. 2,46,613.00 has been made to the petitioner. Meaning thereby, that during the pendency of the writ petition even though the order dated 24.4.2002 issued by the Director, Secondary Education was set aside by this court vide its order dated 12.7.2010 in CWJC No. 5841 of 2002 without passing any separate order for restoring the earlier order, the District Programme Officer illegally and un-authorisedly during the pendency of the writ petition has recovered huge amount i.e. Rs. 4,99,765.00, from his retiral dues.

(3.) Sri Abhimanyu Sharma, learned counsel, who was assisted by Sri Kamaldeo Sharma, by way of referring to Annexure-‘R' to the rejoinder filed by the petitioner at page no. 69, 70 submits that at the time of initial appointment in the year 1978 the petitioner was rightly provided the Post Graduate pay scale as per resolution of the Government of Bihar dated 24.3.1967 (Annexure-‘R' ). He has further argued, by way of referring to the averment made in the writ petition, supplementary affidavit and rejoinder to the counter affidavit, that petitioner had never misrepresented or committed any fraud in obtaining the higher pay scale. Right from the very beginning, in view of eligibility, the petitioner was getting Post Graduate Trained pay scale. He has further argued that once the Director, Secondary Education vide its order dated 16.2.1994 (Annexure-‘7' to the writ petition) had itself restored the pay scale of Post Graduate and directed for payment, at subsequent stage the same authority i.e. Director, Secondary Education was having no any authority to review or recall its earlier order. Learned counsel for the petitioner has further argued that the said order i.e. order dated 24.4.2002 was subsequently quashed by this court on 12.7.2010 in CWJC No. 5841 of 2002. It is true that the matter was remitted back to the Director, Secondary Education to hear and pass order afresh and in compliance of the order, the petitioner filed representation, which has been turned down by the Director, Secondary Education vide Annexure-‘1' to the writ petition, the Director, Secondary Education even by the impugned order has not directed to restore the order dated 24.4.2002 (Annexure-‘9') and as such, in absence of any specific order cancelling the Post Graduate scale of the petitioner, the District Programme Officer was having no authority to ask the Treasury Officer to adjust such a huge amount from his retiral dues. Learned counsel for the petitioner further submitted that in absence of any allegation of misrepresentation or fraud the respondents were not at all authorised to recover the huge amount on the plea that petitioner was paid excess. On this very point he has placed reliance on (2015) 4 SCC 334 (State of Punjab And Others Vs. Rafiq Masih (White Washer) And Others).