Judgment:
ORDER
Tapen Sen, J.
1. Heard Mr. Raj Kishore Prasad assisted by Mr. Sanjay Kumar Pandey, learned counsel for the petitioners and Mr. Kalyan Banerjee. J.C. to Sr. S.C.I. for the State-respondents and with their consent, this writ petition is being disposed off at this stage.
2. The writ petitioners are aggrieved by a letter dated 7.11.2002 issued under Memo No. 4779 by the District Education Officer, Ranchi, whereby and whereunder. directions have been given to all Headmasters of the High Schools to make necessary correction in the pay fixation made with effect from 1.1.1986 and indicate the excess amount paid to the teachers so that appropriate steps can be taken for recovery. The petitioners have also made a prayer for quashing the resolution of the Government dated 20.2.1993 issued by the Department of Finance making a grievance that the said resolution cannot disturb the pay fixation made to the petitioner after granting promotion on completion of 12 years of service.
3. The petitioners are all Assistant Teachers of the Anita Girls High School, Kanke, Ranchi and on completion of 12 years of service, they were promoted on various dates whereafter a resolution dated 18.12.1989 being resolution No. 6022 was issued by the Department of Finance granting scale to the Teachers on the basis of recommendations made by the 5th Pay Revision Committee. According to the petitioner, the Government took a decision to pay monetary benefits from the date indicated in the aforementioned resolution and after they completed 12 years of service from their respective dates of appointment. The pay scales were accordingly revised in pursuance of the aforementioned resolution and were fixed as per the provisions made in the Clause 13(iii) thereafter.
4. It is thus apparent that vide resolution No. 6022 dated 18.12.1989, the Department of Finance, Government of Bihar had accorded sanction for payment of appropriate scales to the Teachers with effect from 1.1.1986 and the same was to be governed by Clause 13 of the said resolution. Upon perusal of Clause 13 of the said resolution, it is evident that the State Government decided that the revised pay scale indicated in Schedule II should also be extended to Teachers and the provision under the Central Government regarding training, eligibility for appointment and promotion and other service conditions be made applicable as far as possible.
5. A similar matter came up for consideration before the Hon'ble Patna High Court in C.W.J.C. No. 3964 of 2001 and other analogous cases. A photo copy of the judgment delivered in those cases on 4.7.2001 was produced in Court by learned counsel for the petitioners. At paragraph 5 of the said judgment, while referring to the aforementioned resolution dated 18.12.1989, another resolution dated 16.11.2000 being resolution No. 7946 was taken into consideration which was issued on the basis of two more resolutions dated 30.8.1989 and 28.11.1990 issued by the Central Government (Department of Personal and Training), whereby and whereunder it was resolved that fixation of pay on promotion was to be governed under the Fundamental Rule 22 (1)(a)(i) and 22 (1) (a) (ii) instead of Fundamental Rule 22(c). The said Hon'ble Court took into consideration that Fundamental Rule 22(c) had already been replaced and new Fundamental Rules, namely, 22 (1)(a)(i) and 22(1)(a)(ii) had been substituted. Thus, at the time when the resolution dated 18.12.1989 had been issued, the Hon'ble Court came to the conclusion that Fundamental Rule 22(c) was not in existence and therefore, fixation of pay on promotion under the Fundamental Rule 22(c) was not available to the teachers of the Nationalised Schools as per the said resolution. At Clause 13(vii) of the said resolution, it was indicated that :--
'13(vii) The existing procedure of fixation of pay on promotion will cease to be applicable to 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 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-paragraph (ii), (iii), (iv) and (v) shall also be governed by those provisions.'
6. From the documents brought on record and upon perusal of Clause 13(vii) as aforesaid, it is evident that fixation of pay on promotion to the teachers of nationalised schools was made effect from 1.1.1986 and the same was to be governed by Clause 13(vii) which has already been quoted above.
7. Upon perusal of the aforementioned quotation, it is evident that the existing procedure was to come to an end with effect from 1.1.1986 and cases of teachers for fixation of pay on promotion was to be governed by Rule 22(c) of the Fundamental Rules.
8. From paragraph 5 of the aforementioned judgment, it is evident that on 16.11.2000, Fundamental Rule 22(c) was replaced and therefore, paragraph 5 of the aforementioned judgment needs to be quoted here and the same reads as follow :--
'It appears that vide Resolution No. 6022 dated 18.12.1989, Department of Finance, Government of Bihar, accorded sanction for payment of Central Pay Scales to the teachers of the Nationalised schools with effect from 1.1.1986 and the same was to be governed by Clause 13 of the Resolution dated 18.12.1989, whereby and whereunder pay was to be fixed on promotion to the teachers of the Central Schools. It further appears from Resolution No. 7946 dated 16.11.2000 that pursuant to the resolutions of the Central Government (Personnel and Training Department) dated 30.8.1989 and 28.11.1990, fixation of pay on promotion was to be governed under Fundamental Rule 22(1) (a)(i) and 22(1)(a)(ii) instead of Fundamental Rule 22(c). It further appears that Rule 22(1)(a)(ii) of the Fundamental Rules applies in the cases of the petitioners, as on promotion they will not discharge responsibilities of greater importance nor there will be any change in their accountability. It also appears that Fundamental Rule is the Rule of the Central Government and changes, if any, in the Rules can be made by the Central Government. The Central Government has replaced Fundamental Rule 22(c) by Fundamental Rule 22(1) (a)(i) and 22(1) (a) (ii). Thus, it appears that Fundamental Rule 22(c) was not in existence at the time of issuance of Resolution No. 6022 dated 18.12.1989, and, therefore, fixation of pay on promotion made under Rule 22(c) of the Fundamental Rules was not available to the teachers of the Nationalised schools as per the resolution aforesaid.'
9. It is thus evident, as has been held in those cases that the Assistant Teachers of Nationalised schools are not entitled to fixation of pay of promotion with effect from 1.1.1986. However, in the case of the petitioners, they were promoted after completing 12 years in service viz., the petitioner No. 1 was promoted on 1.8.1990, petitioner No. 2 on 27.9.1989, petitioner No. 3 on 11.1.1992, petitioner No. 4 on 1.4.1984 and petitioner No. 5 on 1.1.1995. All those promotions are granted prior to 16.11.2000.
10; From the circular i.e. the resolution dated 20.2.1993 which is contained in Annexure 2 and which was issued by the Department of Finance being Resolution No. 1000 it is apparent that the earlier resolution dated 18.12.1989 was amended and it was indicated that in substitution of Clause 13, the fixation of pay will be in terms of Rule 22(c) of the Fundamental Rules.
11. Thus the resolution dated 20.2.1993 cannot be made applicable retrospectively because it will take away vested and/or accrued rights of the petitioner and it can be said to have come into effect prospectively i.e. with effect from 20.2.1993 and not from a date prior thereto. To that extent therefore, the respondents can make necessary corrections with effect from 20.2.1993 and similar correction as per resolution dated 16.11.2000 but not from a date prior thereto. Since the petitioners had been promoted prior to 20.2.1993 and 16.11.2000, they would therefore, be entitled to the fixation as per the resolution dated 18.12.1989.
12. Let it be recorded that a counter affidavit in this case has been filed on behalf of the State and upon perusal thereof, it is apparent that they have not been able to come up with any specific defence save and except making a statement to the effect that the impugned letter as contained in Annexure 1 was based upon the direction of the audit party and the Finance Department and therefore, the matter should be left open to be decided by the Finance Department.
13. In yet another judgment delivered by an Hon'ble Single Judge of the Patna High Court on 17.9.1997 in C.W.J.C. No. 2405 of 1997, a copy of which was produced in Court by the learned counsel for the petitioners, it has been held at Paragraphs 7 to 9 as follows :--
7. I have gone through the writ petition, counter- affidavit and enclosures attached thereto.
From the pleading made by the parties, it will be evident that the pay of State Government employees, including the Assistant Teachers of Primary Schools, was revised vide resolution dated 18.12.1989 (Annexure 14). The manner in which the pay was to be fixed was laid down at Clause 13 therein. It manipulates the fixation of pay, on promotion of conversion, is be made in terms with Rule 22(c) of the Fundamental Rules and be guidelines issued by Government of India from time to time. The Bihar Service Code, including Rule 78 (ii) therein was vague at that point of time. Still benefits in the matter of fixation of pay was given by the said resolution dated 18.12.1989, accordance with Central Government Fundamental Rules, The conclusion dated 18.12.1989 was given effect from retrospective date of 1.1.1986 for the purpose of fixation of pay and arrears salary was allowed with effect from 1.3.1989. The subsequent amendment made by impugned resolution dated 20.2.1993 (Annexure 1) prospective in nature and has not been given effect from any retrospective date.
8. Accordingly, I hold that the resolution dated 20.2.1993 (Annexure 1) and the amendment made in pursuance of the same will come into effect from prospective date, that is with effect from 20.2.1993. Any promotion, if already granted or converted or not made prior to 20.2.1993 in terms with resolution dated 18.12.1989, and/or if a person is entitled for such promotion and/or conversion from a date prior to 20.2.1993 (Annexure 1), the impugned resolution dated 20.2.1993 (Annexure 1) will have no effect in such cases.
9. For the reasons stated above, I hold that the resolution dated 20.2.1993 (Annexure 1) is not applicable in the case of petitioners in the matter of fixation of pay on promotion/conversion, granted prior to 20.2.1993 and respondents cannot review the fixation of pay of the petitioners which were made and already provided to the petitioners prior to the impugned resolution dated 20.2.1993 (Annexure 1). However, I do not find any illegality in the impugned resolution dated 20.2.1993 if given prospective effect'.
14. For the reasons stated above, this writ petition succeeds and it is, accordingly, allowed to do so. The impugned order, insofar as it relates to the petitioners, is held not to apply to the petitioners as they had all been promoted prior to 20.2.1993 and 16.11.2000 and to that extent, the said persons like the petitioners are therefore, held to be entitled to the benefits of the circular dated 18.12.1989.
15. In the result, this writ petition is allowed and the impugned letter in so far it relates to the petitioners, is set aside. Let the photocopies of the two judgments produced in Court, be retained with the records of this case.