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2002 Supreme(Pat) 761
PATNA HIGH COURT
Nagendra Rai and R.S.Garg JJ.
Vijay Kumar Singh
Versus
State Of Bihar
Letters Patent Appeal No. 729 of 2001 ; 734 of 2001 ; 736 of 2001 ; 739 of 2001 ; 742 of 2001 ; 746 of 2001 ; 749 of 2001 ; 750 of 2001 ; 754 of 2001 ; 758 of 2001 ; 760 of 2001 ; 768 of 2001 ; 769 of 2001 ; 775 of 2001 ; 782 of 2001 ; 787 of 2001 ; 788 of 2001 ; 790 of 2001 ; 794 of 2001 ; 796 of 2001 ; 799 of 2001 ; 803 of 2001 ; 807 of 2001 ; 810 of 2001 ; 812 of 2001 ; 814 of 2001 ; 822 of 2001 ; 824 of 2001 ; 833 of 2001 ; 838 of 2001 ; 842 of 2001 ; 844 of 2001 ; 848 of 2001 ; 853 of 2001 ; 861 of 2001 ; 863 of 2001 ; 870 of 2001 ; 871 of 2001 ; 878 of 2001 ; 881 of 2001 ; 886 of 2001 ; 888 of 2001 ; 891 of 2001 ; 893 of 2001 ; 895 of 2001 ; 897 of 2001 ; 904 of 2001 ; 943 of 2001 ; 905 of 2001 ; 906 of 2001 ; 909 of 2001 ; 910 of 2001 ; 919 of 2001 ; 928 of 2001 ; 932 of 2001 ; 935 of 2001 ; 939 of 2001 ; 944 of 2001 ; 947 of 2001 ; 949 of 2001 ; 951 of 2001 ; 955 of 2001 ; 960 of 2001 ; 962 of 2001 ; 965 of 2001 ; 967 of 2001 ; 969 of 2001 ; 973 of 2001 ; 975 of 2001 ; 976 of 2001 ; 978 of 2001 ; 981 of 2001 ; 983 of 2001 ; 986 of 2001 ; 989 of 2001 ; 991 of 2001 ; 992 of 2001 ; 996 of 2001 ; 997 of 2001 ; 1004 of 2001 ; 1008 of 2001 ; 1009 of 2001 ; 1011 of 2001 ; 1016 of 2001 ; 1025 of 2001 ; 1029 of 2001 ; 1032 of 2001 ; 1037 of 2001 ; 1039 of 2001 ; 1041 of 2001 ; 1046 of 2001 ; 1050 of 2001 ; 1051 of 2001 ; 1053 of 2001 ; 1058 of 2001 ; 1060 of 2001 ; 1064 of 2001 ; 1065 of 2001 ; 1068 of 2001 ; 1076 of 2001 ; 1078 of 2001 ; 1080 of 2001 ; 1083 of 2001 ; 1086 of 2001 ; 1087 of 2001 ; 1094 of 2001 ; 1096 of 2001 ; 1100 of 2001 ; 1106 of 2001 ; 1109 of 2001 ; 1113 of 2001 ; 1114, of 2001 ; 1120 of 2001 ; 1122 of 2001 ; 1137 of 2001 ; 1140 of 2001 ; 1147 of 2001 ; 1153 of 2001 ; 1183 of 2001 ; 1184 of 2001 ; 1206 of 2001 ; 1213 of 2001 ; 1220 of 2001 ; 1229 of 2001 ; 1232 of 2001 ; 1239 of 2001 ; 1261 of 2001 ; 1310 of 2001 ; 1327, of 2001 ; 1329 of 2001 ; 1333 of 2001 ; 1337 of 2001 ; 1342 of 2001 ;
Decided On : JULY 17, 2002
Headnote:School Law-Fundamental Law-Rules 22-C & 22(1) (a) (2)-Resolution dated 18.12.1989 of the Finance Deptt., Govt. of Bihar-Clause 13 nationalised schools-Revision of pay scale of teachers-Fixation of pay scale on promotion of the Assistant Teacher of the nationalised schools not carrying duties and responsibilities of greater importance than those attaching to the post held by him-Such cases will be governed by Rule 22(1)(a)(2) which provides that employee will draw his initial pay, the stage of the time-scale which is equal to his pay in respect of old post held by him on regular basis, or, if there is no such stage, the stage next above his pay in respect of the old post held by him on regular basis accordingly the fixation of pay of the appellants and other similarly situated teachers will be made according to Rule 22(1)(a)(2) and not Rule 22-C or the amended provision of Rule 22()la)(1) which has retained the unamended provision of Rule 22-C. (Para 22)
(1881)8 Q.B.D. 63 at 69; (1886)31 Ch.D 607; 1976(1) S.C.R. 6; AIR 1979 SC 798; AIR 1997 S.C. 2951-Referred to.
CWJC No. 2405/97 disposed on 1797 and up held in LPA No. 251/98-Distinguished.
School laws-Recovery of excess payment on account of promotion wrongly given-Large number of assistant teachers of the nationalised schools wrongly given benefit additional increment to which they were admittedly not entitled and huge amount of public money of poor state has been paid by wrong understanding of the provisions of law-Balance lies in favour of public interest and discretion cannot be exercised at the cost of public interest-The employees cannot take shelter of equity as equity cannot be used to violate law and the equity does not help them for the simple reason that there was no obligation on the part of the State Govt. to apply Rule 22-C as it was not is existence-Principles of fair play and good conscience also not helping the employees-Excess payment is liable to be recovered however, in easy and proper instalments. (Paras 26 to 33)
1995 Supp.(1) SCC 18; (2000)10 SCC 99-Distinguished.
(1998)9 SCC 595; 2000(9) SCC 187-Relied upon.
School Laws-Notification dated 16.11.2000 of the Finance Deptt. Govt. of Bihar Classifying that fixation of pay scale in case of promotion to the Asstt. Teacher in the higher scale/selection grade scale-amended provision of Rule 22 will be applicable and if the pay fixation has been wrongly made after giving additional increment in terms of Rule 22-C, taking of steps for recovery of the amount-The question of its applicability retrospectively or prospectively has no relevance-Order passed by single judge set aside. (Paras 34 & 35)
School Law-Rule of Construction of statute-Whether a particular provision of the earlier statute has been wholly or partially incorporated or has been merely referred to depends upon the construction of the relevant provisions by clause 13(vii) of the resolution dated 18.12.89 the State Govt. adopting the Central Govt. Rules, Rule 22-C of the Rules with regard to pay fixation or promotion and further providing that the instructions issued by the Central Govt. for its teachers from time to time will also apply-This is not incorporation of the provisions of law but mere reference to the law with regard to promotion of Central Govt. teachers and as such the provision of law in that regard in force at the time of resolution the of State Govt.-Will apply and not Rule 22-C as it stood omitted prior to the issuance of notification. (Para 21)
Nagendra Rai, J.
1. These appeals by the writ petitioners as well as by the State of Bihar have been filed against the order dated 4.7.2001 passed by the learned Single Judge holding that the decision of the Finance Department, Government of Bihar, dated 16.11.2000, Annexure-1 to the CWJC No. 3964 of 2001, providing that fixation of the pay scale on promotion of the Assistant Teachers of the Government taken over schools (hereinafter referred to as the Nationalised Schools) not carrying duties and responsibilities of greater importance than those attaching to the post held by him, shall be governed by Rules 22(l)(a)(2) instead of Rule 22-C /of the Fundamental Rules (for short, Rules), is valid, but its operation will be prospective and not retrospective and accordingly quashed the direction given in the aforesaid order for recovery of any amount paid in excess in breach of the Rule 22(1)(a)(2) of the Rules.
2. The appellants-writ petitioners are aggrieved by the part of the order by which the learned Single Judge has held that the appellants/ writ petitioners are not entitled to fixation of pay scale in terms of the Rule 22-C of the Rules, whereas the State of Bihar is aggrieved by the part of the order whereby the learned Single Judge has held that the decision of the Finance Department, Govt. of Bihar dated 16.11.2000 will apply prospectively and not retrospectively.
3. As the question of law involved in all the appeals are one and the same, they have been heard together and are being disposed of by a common order. Some of the appeals are barred by limitation. After taking into consideration the averments made in the limitation petitions the delay in filing the concerned appeals is condoned.
4. Admittedly, the writ petitioner/ appellants are the Assistant Teachers of the Nationalised Secondary Schools which are under the Administrative Control of the Department of Human Resources Development, Govt of Bihar. The Vth Pay Revision Committee appointed by the State Government recommended for grant of revised pay scales to Government employees. The Finance Department, Govt. of Bihar, vide its resolution dated 18th December, 1989, took a decision with regard to revision of pay scales of the teachers of the Nationalised schools. The revised pay scales were made applicable to all the teachers who were in service on the 1st January, 1986 and to all new appointments or promotions made effective on or after the said date. By the said decision, the State Government also decided that the provision under the Central Government regarding training, eligibility for appointment and promotion and other service conditions will be made applicable to them as far as possible. Clause 13 of the aforesaid resolution laid down the principles of fixation of pay in the revised pay scales in case of promotion etc. The fixation of pay scale with regard to promotion has been dealt with under Clause 13(vii)of the said resolution. According to the said provision, the existing procedure of fixation of pay on promotion will cease to be applicable to the teachers in the Revised pay scales with effect from 1st January, 1986. In their case the pay fixation on promotion shall be governed by Rule 22-C of the Fundamental Rules 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) and (v) under the aforesaid Clause shall also be governed by those provisions.
5. Before the aforesaid resolution of the Finance Department, Government of Bihar, Rule 22 of the Rules was substituted by G.l., Dept. of Per. & Trg. Notification No. 1/10/89-Estt. (Pay-l), dated the 30th August, 1989, published in the Gazette of India as GSR 679, dated the 16th September, 1989, as amended by Notification of even number, dated the 28th November, 1990 and Rule 22-C was omitted. The question of fixation of pay on promotion was provided under Rule 22(l)(a)(1) and Rule 22(l)(a)(2)
