Nand Kumar Thakur vs The State Of Bihar & Ors on 26 September, 2011

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Patna High Court
Nand Kumar Thakur vs The State Of Bihar & Ors on 26 September, 2011
Author: Shivaji Pandey
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      IN THE HIGH COURT OF JUDICATURE AT PATNA

                  Civil Writ Jurisdiction Case No.6985 of 1997
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Bindeshwari Singh son of Sri Shreenath Singh, at Laxmi Chauk Brahmpura, P.O.
M.I.T. P.S. Brahampura District Muzaffarpur.

…. …. Petitioner.

Versus

1.The State Of Bihar Through the Commissioner cum Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

2.The Special Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

3.The Director, Primary Education, Human Resources Development Department,
Govt. of Bihar, Patna.

4.The D.S.E., Muzaffarpur. …. …. Respondents.

with

Civil Writ Jurisdiction Case No. 11472 of 2000
===========================================================
Saryu Prasad Singh son of Late Surya Narain Singh at present working as Physical
Teacher in Middle School, Marwa, P.S.Baisi District Purnea.

…. …. Petitioner/s
Versus

1.The State Of Bihar Through the Commissioner cum Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

2.The Special Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

3.The Director, Primary Education, Human Resources Development Department,
Govt. of Bihar, Patna.

4.The Commissioner, Finance Department, Govt. of Bihar, Patna.

5.D.S.E., Purnea. District Purnea.

…. …. Respondent/s
with

Civil Writ Jurisdiction Case No. 1722 of 2001
===========================================================

1.Narendra Prasad Singh son of Late Bhaso Singh Resident of village Bansipur,
P.O. Arama, District Lakhisarai, At present Assistant Teacher, Primary School,
Pansai, Tarapur, Block, District Munger.

2.Bhola Sharma son of Sri Birenchi Sharma, Resident of village Tal – Bansipur,
Post Dighri via Surajgarhor, District Lakhisarai, At present Assistant Teacher,
Girls‟ School, Naya Gaon , Block Jamapur, District Munger.

…. …. Petitioners
Versus

1.The State Of Bihar Through the Commissioner cum Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

2.The Special Secretary,
Human Resources Development Department, Govt. of Bihar, Patna.

3.The Director, Primary Education cum- Addl. Secretary, Govt. of Bihar, Patna.
Govt. of Bihar, Patna.

4.D.S.E., Munger, District Munger.

…. …. Respondents
2

with

Civil Writ Jurisdiction Case No. 16129 of 2001
===========================================================

1.Shatrughan Prasad Singh son of Sri Raghunandan Singh Resident of village
Dumari P.O. & P.S. Pyarepur, District Munger.

2.Rabindra Kumar Singh son of Sri Triveni Prasad Singh resident of village Petaria
P.S. Amrath, District Jamui.

3.Chandra Kant Singh son of Late Kailashpati Singh resident of village Dabil
P.S.Jamui District Jamui.

4.Nand Kumar Singh son of ….. Resident of village Dighant P.O. & P.S. Keyar
(Sikandra) District Jamui.

5.Nawal Kishore Singh son of Sri Krishna Singh resident of village Chetan Tola P..
& P.S. Khutaha District Munger.

6.Dev Narayan Mahto son of Sri Misri Mahto resident of village Eton, P.S.
Mananpur District Munger.

…. …. Petitioner/s
Versus

1.The State Of Bihar.

2.The Secretary, Primary Education, Bihar, Patna.

3.TheSecretary, Department of Finance,Bihar,Patna.

4.The Director, Primary Education, Vikas Bhawan, Bihar, Patna.

5.D.S.E., Jamui.

6.D.D.O., Middle School, Malaypur District Jamui.

7.D.D.O., Middle School, Mahadev Simeria, District Jamui.

8.D.D.O., Middle School, Dhamana District Jamui.

9.D.D.O.,Middle School, Ghughal Dih District Jamui.

10.D.D.O., Middle School, Doughat District Jamui.

11.D.D.O. Middle School, Maheshwari Sono, District Jamui.

…. …. Respondent/s
with

Civil Writ Jurisdiction Case No. 14814 of 2001
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1.Ram Subhag Singh son of Sri Sita Ram Singh,
Village & P.O. Chatauni P.S. Tariani District Sheohar.
Assistant Teacher, Middle School, Lalgarh Anchal Dumari Kathsari,District
Sheohar.

2.Birendra Kumar Singh son of Sri Bindeshwar Singh
Village & P.O. Chatauni P.S. Tariani District Sheohar.
Assistant Teacher, Middle School, Fulkahan Anchal Dumari Kathsari,District
Sheohar.

3.Shyam Narain Singh son of Late Ganesh Prasad Singh, village Khazepur P.O.
Sarwarpur P.S.Tariani District Sheohar, Assistant Teacher, Primary School,
Gazipur, Anchal Dumari Kathsari District Sheohar.

4.Raj Narain Singh son of Late Ganesh Prasad Singh, village Kahjepur, P.O.
Sarwarpur P.S.Tariani District Sheohar, Assistant Teacher, Middle School,
Bhataha. Anchal Dumari Kathsari District Sheohar.

5.Jaibir Prasad son of Late Sheo Prasad, village & P.O. Parahi P.S. Sheohar
District Sheohar, Assistant Teacher, Middle School, Dumma, Anchal Tariani
District Sheohar.

6.Raghubansh Sah son of Late Ram Charitra Sah village & P.O. Dumma, Hiranta
3

P.S.Tariani District Sheohar, Assistant Teacher, Middle School, Paharpur, Anchal
Dumari Kathsari, District Sheohar.

7.Ram Babu Prasad Yadav son of Sri Ram Adhar Rai, village Soogari, Dih, P.O.
Chak Shambhoo P.S. Saidpur district Sitamarhi. Assistant Teacher, Middle
School, Ganga Dharampur, Anchal Tariani District Sheohar.

8.Shamboo Prasad Singh son of Late Ram Anugrah Prasad Singh village &
P.O.Chatauni P.S.Tariani District Sheohar, Assistant Teacher, Middle School,
Fulkahan, Anchal Dumari Kathsari, District Sheohar.

9.Awadhesh Kumar Singh son of Sri Jagdish Singh, village & P.O.Chatauni
P.S.Tariani District Sheohar, Assistant Teacher, Middle School, Sheohar, Anchal
Sheohar and District Sheohar.

10. Narain Singh son of Sri Ram Ayodhya Singh village and P.O. Chatauni
P.S.Tariani District Sheohar, Assistant Teacher, Primary School, Jogia Lalgarh,
Anchal Dumari Kathsari District Sheohar.

11.Braj Kishore Singh son of Sri Rajdeo Singh village and P.O. Chatauni
P.S.Tariani District Sheohar, Assistant Teacher, Primary School Kararia Girls,
Anchal Dumari Kathsari district Sheohar.

…. …. Petitioners
Versus

1.The State Of Bihar Through the Commissioner & Secretary, Primary and Adult
Education Department, Patna.

2.Director, Primary Education, Bihar, Patna.

3.D.S.E., Sheohar.

…. …. Respondent/s
with

Civil Writ Jurisdiction Case No. 14941 of 2001
===========================================================

1.Chandradeo Bhagat son of Sri Jag Mohan Bhagat, village Rafiganj P.O.Rafiganj
District Aurangabad.

2.Doman Prasad Singh son of Late Sitaram Singh village Kutkuri P.O. Pogar via
Rafiganj District Aurangabad.

3.Mandeep Ram son of Ram Bilas Ram village Maknora P.O. Singharly Daud
Nagar District Daud Nagar.

4.Samir Ahmad son of Mohiuddin village Suajichuk P.S. Raiganj District
Aurangabad.

…. …. Petitioners
Versus

1.The State Of Bihar Through the Secretary,
Department of Education, Govt. of Bihar, Patna.

2.The Director, Primary Education, Govt. of Bihar, Patna.

3.D.S.E., Aurangabad,
…. …. Respondents
with

Civil Writ Jurisdiction Case No. 15347 of 2001
===========================================================
Nand Kumar Thakur son of Late Ramashish Thakur resident of village
Mohiuddinpur P.S. Warinagar District Samastipur.

…. …. Petitioner.

Versus
4

1.The State Of Bihar .

2.The Secretary cum Commissioner, Finance Department, Govt. of Bihar, Patna.

3.The Secretary cum Commissioner, Primary Education, Govt. of Bihar, Patna.

4.The Director, Primary Education, Govt. of Bihar, Patna.

5.The Special Secretary, Finance Department, Govt. of Bihar, Patna.
6The Deputy Secretary, Finance Department, Govt. of Bihar, Patna.

7.The Regional Dy. Director of Education, Samastipur.

8.D.S.E , Samastipur.

9. District Treasury Officer, Samastipur.

10.The Deputy Director, Primary Education, Finance Department, Govt. of Bihar,
Patna.

11. D.S.E. Nawada, District Nawada.

…. …. Respondents
with

Civil Writ Jurisdiction Case No. 14796 of 2001
===========================================================
Shatrudhan Prasad Singh son of late Tapeshwar Prasad Singh resident of village
Pranpur, Berai Post Sarai District Vaishali at present posted as Physical Trained
Teacher in Middle School, Daraunda District Siwan.

…. …. Petitioner.

Versus

1.The State Of Bihar.

2.The Director, Primary Middle School, Bihar, Patna.

3.The D.S.E, Siwan.

4.The District Accounts Officer, Siwan

5.The Area Education Officer, Maharajganj, Siwan. …. …. Respondents

===========================================================
For the petitioners : Mr. Rajendra Prasad Singh, Sr. Advocate.
For the State : Mr. Prabhakar Tekriwal, G.A.I.
===========================================================

HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
&
HON’BLE MR. JUSTICE SHIVAJI PANDEY

Shivaji Pandey,J In all these cases, the petitioners are physical trained

teachers in different Middle Schools. They have filed these

writ petitions in their individual as well as in representative

capacity. In all the writ petitions, they have claimed matric

trained scale as the other teachers of the same school who

are educational trained teachers (B.Ed.degree) teaching
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other subject are getting matric trained scale. In all the cases

common point involved is as to whether the physical trained

teachers would be entitled to matric trained scale, although

they are physical teachers but they do not have qualification

of training in education (B.Ed.degree).

2. In all the cases, common facts are, petitioners and

similarly situated persons have got the physical training

from the Govt. Physical Training Colleges in the State of

Bihar or outside the State of Bihar. The Bihar School

Examination Board used to grant two types of certificates,

namely, (i) Certificates in physical education, required

qualification being matric, and (ii) Diploma in physical

education, required minimum qualification being graduate,

either in Arts or in Science. In the High Level Committee

meeting dated 28th October 1980, it was decided to reserve

20 per cent post for those who obtained C.P.Ed. training

and from next year, 10 per cent post would be reserved

against newly created post for physical trained candidates

for being appointed in the elementary schools. The

Government of Bihar, vide its letter No.3/0-15-033/90

dated 25th February 1982, directed for reservation of 25 per

cent for diploma holders and 75 per cent for physical
6

training certificate holders. It has further been averred that

the petitioners against the advertisement of the year 1982-

83 having requisite qualification and after going through

the process of selection were appointed as physical trained

teachers in the Elementary schools and they have been

grant of matric untrained scale though were entitled to

Matric trained scale. The petitioners made representation for

granting matric trained scale claiming that the teachers who

were teaching other subjects having training, have been

granted matric trained scale, whereas they have been

deprived of the same. They have claimed that they were

appointed against the sanctioned post and are equal to

trained teachers for all purposes and the Government has

sanctioned the scale of trained teachers. It has further been

stated that apart from imparting physical training, they

are required to teach the students in other subjects also

and they are required to be on duty, right from 10:30

A.M. to 4:00 P.M. on each and every day. When the

petitioners were not granted the said benefit, in that

circumstances they have filed these writ petitions in

individual as well as in a representative capacity claiming

the relief for themselves and also for similarly situated
7

persons.

3. The State has filed counter affidavit and denied the

claim of the writ petitioners claiming that the petitioners do

not possess the qualification which is required for matric

trained scale. The State has taken the stand that the trained

teachers in physical education will not be entitled to benefit

of matric trained scale until they acquire the requisite

qualification, namely, Bachelor of Education (B.Ed.).

4. In course of argument, counsel for the petitioner

has heavily relied on letter no. 885 dated 29th November

1980, claiming that teachers in physical education in

Elementary Schools are entitled to Matric trained scale. It

has further been argued that persons having the same

qualification, appointed in secondary schools or basic

schools are treated equal to the other trained teachers and

accordingly, they are paid the trained scale, whereas in the

elementary schools, teachers having physical training are

being deprived of the matric trained scale.

5. The petitioners have argued that the teachers who

are working in the High Schools having the same

qualification as that of the petitioners are getting the trained

scale whereas the petitioners have been discriminated. It is
8

noted that though the argument has been made on

discrimination but in the writ petition, there is no

foundational fact to support the aforesaid contention. In this

view of the matter, it is not possible to adjudicate the point

of discrimination. The Hon‟ble Supreme Court has

repeatedly held that the Court may refuse to decide an issue

where necessary foundational facts in issue are absent

and held that in writ petitions it is required that the party

who raising an issue must plead foundational facts as

well as proof to substantiate the case and in absence of the

same, the court will refuse to take cognizance of the same.

In this context, the following judgments are relevant:

AIR 1988 SC 2181 (Bharat Singh. v. State of Haryana

(Para-13)

(2009)10 SCC 313 (Yash Ahuja Vs. Medical

Council of India.(Para – 78 to 80)

(2007) 5 SCC 447 Southern Petrochemical Industries

Co.

Ltd. V. Electricity Inspector and E.T.O. and

others.(Para-69, 70, 74)

6. On behalf of petitioners, reliance was placed upon

the judgment in C.W.J.C.No. 8481 of 1990 (Jagada Nand
9

Singh and others vs. State of Bihar) ( Annexure-4 to the

writ petition). In that case, Hon‟ble single Judge allowed the

writ petition and directed to pay matric trained scale from

the initial date of appointment including arrears.

7. The Hon‟ble single Judge decided the aforesaid

case without counter affidavit and the relevant notifications

were not brought to the notice of the Hon‟ble single Judge.

Similar matter came up for consideration before this Court

in C.W.J.C.No. 6947 of 1994 (Binod Kumar Singh v. State

of Bihar) reported in 1995(2) PLJR 378. In that case also

the point was raised, as to whether the Assistant Teachers

having physical education would get the matric trained

scale? In the aforesaid case also, the point was raised before

the Hon‟ble single Judge that persons having same

qualification appointed in the secondary school were being

paid trained scale whereas the petitioners having the same

qualification were being treated differently and they were

being deprived of the scale of matric trained scale. The

Hon‟ble single Judge while deciding the case has noticed the

rules, regulation and circulars and held that rule, regulation

and circular applicable to secondary schools are not

applicable to the elementary school. It was noticed that
10

while in the secondary schools there is subject-wise

appointment and physical education being one of the

subjects, there is a provision for appointment of physical

trained teachers whereas in the elementary schools, teachers

are to teach all subjects. There is no such provision for

appointment of teachers in a particular subject, including

physical education in the elementary schools. The Hon‟ble

single Judge has held that the teachers in the secondary

schools constitute a different class than that of the teachers

of the elementary schools and both cannot be treated at par

with each other. The Hon‟ble single Judge considering all

the circulars and notifications held that teachers having been

trained in physical education will be reckoned to be

equivalent to matric trained teachers but they will not be

entitled to the benefit of matric trained scale unless they

acquire the requisite qualification, namely, Bachelor of

Education. While deciding the case, the Hon‟ble single

Judge has, for a limited purpose, also relied on the judgment

decided by a Division Bench in the case of Kumud Kumari

Srivastava v. State of Bihar and others disposed of on 1 st

May 1995, reported in 1995(2) PLJR 215 (This case is

related to Project School). The Division Bench while
11

deciding that case has observed as follows:

“The petitioner has a certificate/degree in physical

training and on that basis tries to present herself as

possessing the minimum qualification of „trained graduate‟.

The contention is wholly untenable. In the light of what has

been stated above, Education is altogether a different subject

than physical training and what is required by way of

minimum qualification is a degree of Bachelor of Education

and any certificate or degree in physical training. Hence, any

one possessing any certificate or degree in physical training

cannot claim to fulfil the minimum qualification”

The learned single Judge finally decided that

teachers in physical education not having requisite

qualification of diploma or degree in education cannot be

said to be a trained teachers and are not entitled to scale of

trained teacher until they acquire the requisite qualification.

8.The judgment in the case of Binod Kumar Singh

(supra) was challenged before a Division Bench in L.P.A.

No. 682 of 1995 (Tej Narayan Pathak and others vs. State of

Bihar) and the principles enunciated by the single Judge

were accepted by the Division Bench. In similar facts and

circumstances. similar matter again came up before this
12

Court, in C.W.J.C.No. 3175 of 2004 (Bachcha Nath Jha and

others v. State of Bihar and others). In that case also the

petitioners, physical trained teachers in the middle schools

having the qualification of training physical education but

not possessing the requisite certificate, diploma or degree in

education were claiming Matric Trained scale. Following

the judgment in the case of Binod Kumar Singh (supra),

their similar was rejected. In this case it was brought to the

notice of the Court that certain teachers being trained only

in physical education were paid matric trained scale. The

Court took serious view of the matter and asked the learned

counsel for the State to file supplementary counter affidavit

about the status of payment of teachers and in pursuance

thereof, the learned counsel for the State filed

supplementary counter affidavit and brought on the record

that five Head Masters who were found to have been

making payment of salary to the teachers who were not

entitled to get such salary on account of their being

untrained and not possessing requisite qualification, have

been put under suspension. The Hon‟ble single Judge

directed the Principal Secretary in Human Resources

Development Department to ensure that suitable disciplinary
13

action is taken against the aforesaid five Head Masters who

had allowed the salary of matric trained scale to the

assistant teachers who were only physical trained. After

considering the facts and circumstances, the Court rejected

the claim of petitioners of that case and held that the

teachers in physical education are required to possess the

diploma and/or degree in education and in absence thereof

they would not be treated as trained teachers in education

and are not entitled to Matric Trained scale in Elementary or

Middle Schools. This judgment has been approved by

Division Bench in L.P.A.No. 726 of 2008 (Bachha Nah Jha

vs. state).

9. The judgment in Jagdanand Singh‟s case

(supra) cannot be said to be a binding precedent on the point

raised while the subsequent reported judgments in the case

of Binod Kumar Singh‟s case (supra) has considered every

aspect of the matter and finally came to the conclusion that

Assistant teacher having qualification of physical education

cannot be treated at par with other teachers having B.Ed.

qualification. This judgment has considered all the circulars

occupying the field and the same was approved by the

Division Bench. Another Division Bench judgment in
14

L.P.A. No. 726 of 2008 has also taken the same view.

Hence, we have no option but to hold that judgment in the

case of Jagda Nand Singh cannot be followed as a

precedent. In support, the following judgment may be

referred-(2007)1 SCC 408, (Para-41) (Indian Drugs &

Pharmaceutical Ltd. Vs. Workmen, Inan Drugs &

Pharmaceutical (Ltd).

10. The learned counsel for the petitioners has relied

on a new Rules, namely, “Special Elementary Teachers‟

Appointment Rules, 2010” to show that the State of Bihar

by this new Rules has decided to pay the trained scale to the

teachers having the certificate of C.P.Ed. or having training

of one year of C.P.Ed/D.P.Ed. It will be relevant to state that

2010 Rules will not be applicable to the case of present

petitioners. Moreover, the definition clause 2(iv) defines

“training” to include Teachers having the certificate of

physical education of two years and the training of one year

from the Institute recognized by the State of Bihar for

limited purpose of requisite qualification for being

appointed as teachers, but this provision in Rule 2(iv) or

those in Rule 3(iv) do not stipulate that the teachers having

qualification of physical training will also be entitled to
15

matric trained scale. These Rules were framed for a special

drive for appointment of teachers in view of directions of

Hon‟ble Supreme Court in Contempt Petition No. 297/2007

as one time appointment.

11. In view of the facts and circumstances of the case,

looking to the consistent views of this Court on the relevant

issue and observing principle of stare decisis ( abide by the

decisions, to stand by decided cases, to uphold precedents,

to maintain former adjudications), there is no option but to

follow the judgment reported in Binod Singh‟s case (supra)

approved by the Division Bench of this Court. It is,

therefore, held that the primary teachers having training only

in physical education and not having the qualification of

B.Ed. are not entitled to matric trained scale.

12. Accordingly, all the writ petitions are dismissed.

13. There will be no order as to costs.




                                                    ( Shivaji Pandey,J)

Shiva Kirti Singh,J             I agree.



                                                   (Shiva Kirti Singh,J)
Patna High Court,
    A.F.R. /Jay
Dt. 26th Sept. 2011
 16
 

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