Md. Taki Imam vs The State Of Bihar And Ors
2023 Latest Caselaw 4945 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Civil Writ Jurisdiction Case No.1676 of 2019
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Md. Taki Imam, Son of Md. Murtaza Hussain, Resident of Village- Kasba, P.S.- Shambhuganj, District- Banka.

... ... Petitioner Versus

1. The State of Bihar through Principal Secretary, Department of Human Resources, Bihar, Patna.

2. The Director, Primary Education, Education Department, Government of Bihar, Patna.

3. The District Magistrate, Banka.

4. The District Education Officer (Establishment), Banka

5. The District Programme Officer (Establishment), Banka

6. The Block Development Officer, (BDO), Shambhuganj, Banka

7. The Block Education Officer (BEO), Shambhuganj, Banka

8. The Block Withdrawal and Disbursing Officer, Shambhuganj, Banka

9. The Treasury Officer, Banka.

... ... Respondents ====================================================== Appearance :

For the Petitioner : Mr. Rajesh Kumar Sharma, Advocate Mr. Md. Najmul Hodda, Advocate For the Respondents : Mr. Kameshwar Kumar, GP-17 Mr. Amit Bhushan, AC to GP-17 ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD CAV JUDGMENT Date : 26-09-2023

This writ application has been filed seeking setting aside

of the order dated 29.12.2018 contained in Memo No. 3302 passed

by the District Education Officer (Establishment), Banka

(Annexure '3' to the writ application) by which the respondent

authority has directed for recovery of the difference of amount of

pay scale benefit earlier given to the petitioner in the category of

Matric and Graduate Trained Pay Scale. The petitioner also prays

for other reliefs.

Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

Stand of the Petitioner

2. The petitioner was appointed as Assistant Trained

Teacher in the category of Matric Trained Pay Scale vide Memo

No. 1277 dated 15.06.1995 in the Middle School, Assimakaitha,

Block- Dharaiya, District- Banka. He was promoted in Graduate

Trained Pay Scale vide Memo No. 549 dated 18.02.2011 as

contained in Annexure '2' to the writ application. In order to get

promoted in the Graduate Trained Scale, the petitioner submitted a

certificate of B.Ed. Degree issued from Non-Government Sogra

College of Education, Biharsharif, Nalanda (hereinafter referred to

as the 'College in question' or 'College'). He claims to have done

B.Ed. Course during the Session 1984-85 from the College in

question under Magadh University, Bodh Gaya (hereinafter

referred to as the 'University') and passed the examination held in

the year 1990.

3. At this stage, the bone of contention is that

Respondent No. 4 has held by the impugned order that the degree

of B.Ed. issued by the College in question is not a valid degree fit

for selection and appointment of Teacher. Direction has been

issued to recover the difference of the amount of pay scale earlier

given to the petitioner in the category of Matric and Graduate Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

Trained Pay Scale, therefore, the petitioner submits that he has

been demoted from the post of Headmaster in Graduate Trained

Pay Scale and has been directed to join in Matric Trained Pay

Scale in Upgraded Middle School, Karhariya, Shambhuganj,

Banka.

4. In the writ application, the petitioner has taken a

specific stand that the impugned order has been passed in violation

of principle of natural justice without affording him any

opportunity of hearing. It is his submission that he had not made

any misrepresentation or fraud for the purpose of availing the

benefit of promotion in Matric and Graduate Trained Pay Scale.

5. Relying upon the judgment of the Hon'ble Supreme

Court in the case of State of Punjab and Ors. Vs. Rafiq Masih

(White Washer) and Ors. reported in PLJR 215 (1) SC 261,

learned counsel submits that the ratio of the said judgment would

apply in the facts of the present case because B.Ed. degree of the

petitioner has been declared not fit after about 23 years of his

satisfactory service and Graduate Trained Pay Scale had been

given in the year 2011. He has also relied upon some of the

judgments of this Court in the case of State of Bihar Vs. Ram

Sharan Prasad reported in 2007 (Supplementary) PLJR 223 and

State of Bihar Vs. Rajendra Prasad Srivastava reported in 2016 Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

(3) PLJR 509 to submit that without any laches or

misrepresentation on the part of the petitioner, monetary benefits

have accrued and paid to him, the same will not be recovered.

Stand of the State Respondents

6. The State respondents have filed a counter affidavit

through the District Programme Officer (Establishment), Banka.

The impugned order has been defended on the ground that there is

no dispute that the petitioner was appointed on the basis of

degree/certificate of Teacher's Training obtained from the College

in question which is an invalid or unrecognized institution. The

said institution was never treated to be a recognized institution and

when a writ application being CWJC No. 4560 of 2007 (Md. Adil

Rashid and Ors. Vs. The State of Bihar and Ors.) was filed

before this Court seeking direction to the State respondents to

include this College in the list of the recognized Non-Government

Colleges imparting B.Ed. education, the said writ application was

allowed by the learned Writ Court vide order dated 24.10.2011

with a direction to the State respondents to include the College in

the list for the Session 1985-86 and other sessions for which its

students were allowed to appear in the B.Ed. examination

conducted by the University. The said order of the learned Writ

Court was assailed in LPA No. 1241 of 2014. LPA No. 1241 of Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

2014 was allowed vide order dated 19.05.2015 and the direction

issued by the learned Writ Court was set aside.

7. Learned counsel for the State, therefore, submits that

in view of setting aside of the judgment of the learned Single

Judge passed in the writ application, the degree/certificate issued

by the College in question remained unrecognized and the same

cannot be treated to be a valid document. It is also submitted that

any decision with regard to validity or invalidity of a

degree/certificate primarily remained in the domain of the State

Government. The State Government has never granted any

recognition to this institution.

8. Referring to an order appearing in Memo No. 71

dated 25.04.2014 (Annexure 'R/5-B' to the counter affidavit),

learned counsel for the State submits that the Department of

Education, Government of Bihar examined the matter relating to

grant of recognition to the College in question and this was done

pursuant to the order of this Court in CWJC No. 12879 of 2005

(Umesh Kumar Nirmal and Ors. Vs. State of Bihar and Ors.).

The matter was examined by the Research and Training

Directorate and the College was invited for hearing in the said

matter but no one appeared on behalf of the College on the date

fixed with the required documents. Some representations were, Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

however, made by some of the candidates who had also appeared

but they could not produce satisfactory documents. This order

specifically states that this institution had never been granted

promotion for any academic session to conduct Teachers Training

Course. It is stated that the College comes within the University

but without permission from the State Government, if any

examination has been conducted and the students have been given

marksheets/certificates then the same cannot be considered for the

purpose of appointment of Teacher. Annexure 'R/5-B' was issued

on 25.04.2014 and it is submitted that the same has remained

undisturbed.

9. Learned counsel for the State, therefore, submits that

no interference is required with the impugned order. Learned

counsel further submits that prior to passing of the impugned

order, the petitioner was given an opportunity to submit his stand,

therefore, it is not correct to say that the petitioner was not given

any opportunity of hearing.

10. Attention of this Court has been drawn towards the

direction of this Court in CWJC No. 14138 of 2014 (Md. Alauddin

Azmi and Others Vs. The State of Bihar and Others) in which

similarly situated Teachers appointed on the recommendation of

the Bihar Public Service Commission and who were continuing on Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

the basis of the B.Ed. degree issued by this College had intervened

in the writ application claiming that they may be removed by the

authorities. In the counter affidavit, the relevant part of the order of

the Hon'ble Writ Court has been quoted and attention has been

drawn towards the observations of this Court saying that "so far as

grant of trained scale on the strength of Teachers Training Degree

of Sogra College of Education, Biharsharif, Nalanda is concerned,

if their degrees are invalid then the Education Department may

withdraw the benefit of Trained Scale and that cannot be a ground

for removal of intervener. ..."

11. It is stated that the petitioner stands on similar

footing and as per the order of this Court, the impugned order has

been passed wherein the trained scale of the petitioner has been

withdrawn and recovery has been ordered.

12. Learned counsel for the State has submitted that the

petitioner was given an opportunity of hearing before passing of

the impugned order. In this regard, attention of this Court was

drawn towards the Letter No. 2784 dated 03.11.2018 and Letter

No. 3104 dated 06.12.2018 which are Anenxures 'R/5-D' and

'R/5-E' respectively. In paragraph '13' of the counter affidavit, it is

stated that the petitioner had filed his reply wherein he has Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

admitted that he was appointed and continuing on the basis of

B.Ed. degree obtained from the College in question.

Consideration

13. Having heard learned counsel for the petitioner and

learned counsel for the State as also on perusal of the records, this

Court finds that the petitioner claims to have pursued his B.Ed.

Course from the College in question during Session 1984-85 for

which the examination was held by University in the year 1990.

This certificate has been the bone of contention between the

parties. From the developments which are evident from the various

office orders issued by the Department of Education, Government

of Bihar, it is evident that the matter relating to grant of

recognition to the Academic Session of this College in B.Ed.

course was pending consideration before the Department.

Annexure 'R/5-B' is the order dated 25.04.2014 passed by the

Joint Secretary, Education Department, Government of Bihar

which has been issued in compliance with the direction of this

Court in CWJC NO. 12879 of 2006 issued on 06.02.2014. This

Annexure 'R/5-B' states that because of the pendency of CWJC

No. 12879 of 2006, the Department had some difficulty in taking a

decision but after order of the Court, it has become clear. This

office order further states about the hearing fixed by the Research Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

and Training Directorate on 09.10.2012 in which the Principal of

the College and some of the students who have obtained B.Ed.

Degree were present. From Annexure 'R/5-B', it also appears that

the Hon'ble Supreme Court had in Contempt Petition (C) No. 297

of 2007 in SLP (C) No. 22882 of 2009 taken note of the statements

of some of the aggrieved candidates who had obtained B.Ed.

Degree from this College and after taking note of their grievance

that the institution has been kept in fake/unrecognized category,

and informed that some of the candidates from the same institution

have been considered eligible whereas some of them are not being

considered, the Hon'ble Supreme Court granted liberty to the

candidates to apply to the Bihar Staff Selection Commission for

recognition of their status and the status of their institution in

respect of which objections have not been considered by the

Special Officer. The office order states that in the light of the

aforesaid order of the Hon'ble Supreme Court, the Bihar Staff

Selection Commission is taking appropriate action. Having said so,

the office order (Annexure 'R/5-B') considered the matter relating

to the grant of recognition of the College in question and finally

concluded that its degree is not recognized for purpose of

appointment as Teacher. Nothing has been brought before this

Court that Annexure 'R/5-B' has been interfered with by a Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

competent court of law or this office order has been diluted

otherwise. If it is so, then it has to be concluded that the B.Ed.

Degree of the college in question has not been recognized by the

Government for the purpose of appointment as Teacher.

14. The judgment of the Hon'ble Division Bench of this

Court in LPA No. 1241 of 2014 which has been relied upon by

learned counsel for the State further shows that the judgment of

the learned Writ Court passed in CWJC No. 4560 of 2007 was set

aside.

15. The counter affidavit of the State, in paragraph '14'

quotes the relevant part of the judgment of the learned Writ Court

passed on 20.11.2018 in CWJC No. 14138 of 2014 which reads as

under:-

"5. ... It goes without saying that those who were appointed as Assistant Teachers on the recommendation of the Bihar Public Service Commission in terms of 1991 Recruitment Rules cannot be removed, if granted trained scale on the basis of B.Ed. degree of Sogra College.

6. It is well settled legal position that in terms of 1991 Recruitment Rules, selection process was undertaken by the Bihar Public Service Commission and on the recommendation of the B.P.S.C., trained as well as untrained teachers were appointed and simply because defects were noticed in grant of trained scale cannot be a ground to find fault in the initial appointment.

7. So far as appointment of teacher as untrained on the recommendation of B.P.S.C. is concerned, the Court is Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

of the considered view that no defect can be taken in the appointment of intervener applicants, if made on the recommendation of the B.P.S.C.

8. So far as grant of trained scale on the strength of teachers training degree of Sogra College of Education, Bihar Sharif, Nalanda is concerned, if their degrees are invalid then the Education Department may withdraw the benefit of trained scale and that cannot be a ground for removal of intervener.

9. It is made clear that this Court has never intended that a teacher appointed on the recommendation of the B.P.S.C. as untrained can be terminated, if such teachers on the strength of teachers training degree from Sogra College of Education, Bihar Sharif, Nalanda have been granted the benefit of trained scale, the respondents may take appropriate steps with regard to withdrawal of trained scale after opportunity of hearing to the applicants of I.A. Nos. 8662 of 2018 and 8663 of 2018."

16. The case of the petitioner stands on similar footing

with the intervenors of CWJC No. 14138 of 2014.

17. On the basis of the aforesaid materials, this Court

would conclude that so far as the validity of the B.Ed. Degree issued

by the College in question is concerned, this Court cannot confer any

validity to the same on the face of the decision of the Government as

contained in Annexure 'R/5-B'. The withdrawal of trained scale of

pay is also in tune with the observations of this Court in CWJC No.

14138 of 2014. The petitioner has been given opportunity of hearing

and the plea of the petitioner that the impugned order was passed in Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

violation of the principles of natural justice has been negated by the

State with specific statements and materials with the counter

affidavit.

18. This Court is, therefore, of the considered opinion that

the impugned office order (Annexure '3' to the writ application)

insofar as it states that the benefit of the trained pay scale is being

withdrawn cannot found fault with. The office order is sustained to

that extent.

19. As a result of this Teachers Training Certificate, if the

petitioner got promotion and obtained benefit of the promoted post

and the same is being withdrawn, this Court would not interfere with

the same but the office order insofar as it directs recovery of the

difference of amount paid to the petitioner on account of the grant of

Trained Pay Scale cannot be sustained. This Court finds that the

matter relating to grant of recognition to the B.Ed. degree of the

College in question was pending consideration for a long time and

the certificate had been issued after the University conducted the

examination in which the petitioner passed. The controversy

regarding validity of the certificate was pending consideration and it

could be resolved only vide Annexure 'R/5-B' to the counter affidavit

in the year 2014. Thereafter also, this issue was raised before this Court

in various writ applications and the matter went to the Hon'ble Patna High Court CWJC No.1676 of 2019 dt.26-09-2023

Division Bench in LPA No. 1241 of 2014 which was heard and

disposed of on 19.05.2015. The respondent authorities proceeded to

take steps towards passing of the impugned order only after the

Director, Primary Education wrote Letter No. 1382 dated 26.10.2018

to all the District Education Officers/District Programme Officers

(Establishment) directing them to make available a report with regard

to action taken in the matter of those Teachers who had been

appointed on the basis of invalid Teachers Training Certificate. It is

evident from Annexure 'R/5-C1' dated 26.10.2018 written by the

Director, Primary Education that there had been a delay and inaction

on the part of the respondent State authorities itself. For all these

reasons, this Court is of the considered opinion that no recovery may

be done from the petitioner at this stage. To that extent, the impugned

order as contained in Annexure '3' would be deemed to have been set

aside.

20. This writ application is partly allowed.

(Rajeev Ranjan Prasad, J) lekhi/-

AFR/NAFR
CAV DATE                  25.09.2023
Uploading Date            26.09.2023
Transmission Date