1 IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 5892 of 2009 1. Shyama Prasad Singh, S/o Late Rajendra Prasad Singh, Retired Asst. Teacher, resident of Nijura, P.O. Moura, P.S. Khaira, Dist-Jamui (Bihar).
2. Chandra Bhushan Prasad Singh, S/o Late Ram Khelawan Singh, Asst. Teacher, T.V.S. High School, Jagannathpur, R/o P.O. & P.S. Dhurwa, Dist- Ranchi.
3. Smt. Sudha Jha, W/o Sri K. N. Jha, Asst. Teacher, T.V.S. High School, R/o Jagannathpur, P.O. & P.S. Dhurwa, Dist-Ranchi.
4. Ravindra Nath Thakur, S/o Late Nagendra Thakur, Asst. Teacher, K.B. Girls High School, R/o Ratu Road, P.S. Sukhdeo Nagar, Ranchi.
5. Kali Nath Jha, S/o Late Sukhdeo Jha, Asst. Teacher, Rajkiyakrit High School, R/o Piska Nagari, P.O. & P.S. Piska Nagari, Dist-Ranchi.
6. Chandra Deep Mehta, S/o Sri Deo Lagan Mahto, Asst. Teacher, Rajkiyakrit High School, R/o Piska Nagari, P.O. & P.S. Piska Nagari, Dist- Ranchi. ….. ….. Petitioners Versus 1. The State of Jharkhand through the Secretary, Department of Human Resources and Development, Govt. of Jharkhand, Ranchi.
2. The Director, Secondary Education, Govt. of Jharkhand, H.E.C, P.O. & P.S. Dhurwa, Ranchi.
3. The Regional Dy. Director of Education, South Chhotanagpur, H.E.C, P.O. & P.S. Dhurwa, Ranchi.
4. District Education Officer, H.E.C, P.O. & P.S. Dhurwa, Ranchi. ….. …. Respondents --------- CORAM: HON’BLE MR. JUSTICE PRAMATH PATNAIK ---------- For the Petitioners : M/s V.P. Singh, Sr. Adv. & Amrita Kumari, Adv. For the Respondents : Mr. Rishikesh Giri, J.C. to G.P.II. CAV on:06th May, 2016 Pronounced on 09/09/2016 Per Pramath Patnaik, J.:
1. In the instant writ application, the petitioners are aggrieved by the decision dated 05.07.2008 (Annexure-4 to the writ petition) by which direction has been made to make correction in the service book of the petitioners considering their recognized service with effect from the date of recognition of school and not from the date on which the school was ordered to be established by the Board as also to make recovery of the amount.
2. The factual matrix, as delineated in the writ application, in a nutshell are that petitioners were initially appointed by the Managing Committee of T.V.S High School of Jagannathpur and the dates of appointments have been mentioned in a tabular form in para 4 of the writ application. The T.V.S High School, Jagannathpur was started in the year 1969 but approval was 2 granted to establish the school by the Board after due inspection and recommendation by the committee of the Board. The said approval was granted on 04.12.1978 and later permanent recognition was granted to the school on 27.11.1979. Thereafter, the school was taken over by the State Government under the provision of Bihar Non-Government (Taking over of Management and Control) Act, 1980. It has been stated that even prior to taking over the school by the Government, the statutory body i.e. the Board recognized the services of the petitioners with effect from 04.12.1978, the date when the school was allowed to be established by the Board under the provisions of Bihar Secondary Education Board Act, 1976 and they were paid salary in the scale of Assistant Teacher with effect from 27.11.1979, when the school was given permanent recognition by the Board under the BSEB Act, taking their date of recognized service with effect from 04.12.1978. Thereafter, petitioners and other teachers were given promotion to Junior Selection Grade by the competent authority but curiously the respondents after about three decades have taken steps to make recovery from the retiral benefits of the petitioner no.1, who retired on 31.12.2008 on the ground that his date of service should not be counted from 04.12.1978 but should be counted from 27.11.1979 and respondents have taken action in pursuance to letter dated 05.07.2008 as per Annexure-4 to the writ application. Being aggrieved by the impugned action of the respondents vide letter dated 05.07.2008 (Annexure-4), the petitioners having no other efficacious and alternative remedy, approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of their grievances.
3. Learned senior counsel for the petitioners has strenuously urged that as per the judgment of the Hon’ble Supreme Court in case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors. reported in (2009) 3 SCC475which was also similar matter arising out of pay fixation. The Hon’ble Supreme Court has issued general direction for refund in paragraph 61 of the judgment, which is held as under:
“61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended 3 provisions of FR22C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment.” Learned senior counsel has submitted that recovery of excess amount paid to the petitioner is clear violation of the general direction issued in case of Syed Abdul Qadir and Ors. (Supra).
4. Learned senior counsel by referring to I.A. No.5784 of 2015 has submitted that the respondents be directed to refund the amount, which they have wrongly and illegally recovered from the retiral benefits of the petitioners with interest from the date of deduction till its payment as they had deducted the amount contrary to general direction of the Apex Court in case of Syed Abdul Qadir and Ors. (Supra).
5. Controverting the averments made in the writ application, counter affidavit has been filed on behalf of respondent no.4. Learned J.C to G.P. II appearing for the respondents has reiterated the submission made in the counter affidavit. Learned counsel for the State has submitted that as per the submission made in the writ application, it is amply clear that the petitioners’ school was started in the year 1969 but approval for establishment of school was accorded since 04.12.1978 and recognition of the school was given since 27.11.1979. The school was taken over by the Government since 02.10.1980 as per circular’s services of the petitioners recognized from the date of establishment of school, but, monetary benefits will be given to them from the date of recognition which is 27.01.1979. Hence, prior to 27.11.1979 the petitioners cannot claim the monetary benefits as per circular.
6. After hearing learned counsel for the respective parties and on perusal of the documents on record, I am of the considered view that petitioners have been able to make out a case for interference due to the following facts and reasons:
4. (I) Admittedly, the petitioners were appointed prior to establishment of the school i.e. 04.12.1978 and approval was granted to establish the school by the Board after due inspection and recommendation by the committee of the Board. The said approval was granted on 04.12.1978 and later permanent recognition was granted to the school on 27.11.1979 and thereafter, the school was taken over by the State Government under the provision of Bihar Non-Government (Taking over of Management and Control) Act, 1980. By issuing the impugned letter dated 05.07.2008 the action of respondents is not justified in changing the recognized services of the petitioners from 04.12.1978 to 27.11.1979. (II) Admittedly after appointment of the petitioners, they have been given benefit of pay fixation and promotion and after efflux of three decades, the respondents by virtue of Annexure-4 have decided to make correction in the service book of the petitioners, considering their recognized service with effect from the date of recognition of school and not from the date on which the school was ordered to be established by the Board as also to make recovery of the amount, which is against the settled principles of law as decided by the Hon’ble Apex Court reported in (2009) 3 SCC475. (III) On perusal of the Annexure-2 series, it is quite clear that the Bihar Secondary Education Board has been pleased to order to recognize the services of the trained graduate teachers from the date from which the school was established but by virtue of impugned letter dated 05.07.2008 vide Annexure-4, the respondents have tinkered with the direction of the statutory body which cannot be countenanced in the eye of law. Moreover, the action of the respondents vide Annexure-4, for reducing the pay scale of the petitioners and for making recovery after thirty years’ services put in by the petitioners, when there has been no misrepresentation or concealment from the side of the petitioners, would be in clear violation of the rights of the petitioners under Article 14, 19 and 300A and 311 of the Constitution of India.
7. In view of the reasons stated in the foregoing paragraphs and as a logical sequitur to the reasons aforesaid, the impugned dated 05.07.2008 vide Annexure-4 to the writ application, is quashed and set aside and the respondents are directed not to change the recognized services of the petitioners from 04.12.1978 to 27.11.1979 and the respondents are further directed to refund the amount recovered from the petitioners and the 5 pensionary benefits of the petitioners be fixed treating the date of the petitioners as 04.12.1978 and post retiral benefits be calculated and paid to the petitioners and accordingly, respondents are directed to refund the recovered amount to the petitioners within a period of 12 weeks from the date of receipt/communication of the order, failing which the same shall carry interest @ 9% per annum.
8. With the aforesaid direction, the writ application stands allowed. (Pramath Patnaik, J.) Saket/-