1 IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.6985 of 1997 ===========================================================
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
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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
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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
5
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