1. Batch of writ applications involving the common question of law were disposed of by a learned Single Judge of this Court on 14.9.2001 The Writ petitioners and the State of Bihar have preferred these 15 appeals against the said order.
2. The controversy relates to grant of matric trained scale to the teachers of the elementary school having higher qualification but not possessing a certificate in teachers training. The State Government has passed several conflicting orders resulting into numerous litigations to this Court. The batch of writ applications out of which the appeals arise were filed for quashing the order dated 16.1.2001 passed by the Deputy Secretary, Finance Department, Govt. of Bihar, Patna whereby a decision was taken that as teachers training is a requisite qualification for grant of matric trained scale, untrained teachers are not entitled to the matric trained scale and the payment made to them in that scale shall be recovered in 20 equal instalments. They also prayed to grant them matric trained scale at Rs. 4500-7000/- and for holding examination of those teachers including the appellants who have completed training in Session 1997-1998. The learned Single Judge disposed of the same by issuing the following directions.
(i) The State Government particularly in its Department of Finance of Primary Education is directed to issue necessary notification(s) implementing the recommendations of the Fitment Appellate Committee in respect of the elementary school teachers on the point at issue within a period of two weeks from the receipt/production of a copy of this order.
(ii) The recommendation of the Fitment Appellate Committee will cover matric and intermediate trained teachers and graduate and post graduate untrained teachers. The intermediate untrained teachers with regard to whom no recommendation was made by the Fitment Appellate Committee are not entitled to matric trained scale, but the amount which was paid to them under resolution dated 18.12.1989 and the circular dated 25.6.1999 will not be recovered from them. The respondent-State will make arrangements for holding a special examination for the teachers who had gone training in service.
3. Prior to 1991, according to relevant provision the minimum qualification for appointment to the teachers in the elementary school was Matriculation and a certificate of a basic teachers training having a duration of two years. In other words only matric trained teachers were eligible for appointment to the post of Assistant teacher in elementary school. Even untrained teachers were appointed in certain subjects due to non-availability of trained teachers in certain syllabus. Relaxations were made in the case of lady candidates as well as candidates belonging to the minorities communities as a result of which two scales were prevalent, one was matric trained scale for trained teacher and the other was matric untrained scale for untrained teacher. As a result of relaxation large number of untrained teaches having higher qualification than matriculation, namely, intermediate, graduate and post graduate were also appointed and different scales were also provided to them. In 1989, the State Government constituted a Fitment-cum Pay Revision Committee for its employees. There were certain anamolies therein and accordingly the State Government constituted a Anamoly Removal Committee. Thereafter, the State Government issued a notification on 18.12.1989 accepting the recommendation of the said committee. So far the teachers of elementary school are concerned, they were put in two categories. Matric trained, intermediate trained, intermediate untrained and graduate untrained were put in matric trained scale of Rs. 1200-2040/-. The matric untrained teachers were put in the scale of Rs. 975-1540/-.
4. On 5.3.1991, the State Government done away with the requirement of teachers training for appointment of Assistant Teacher for elementary school and it provided that after appointment, the teachers were to be given training in service and accordingly Bihar Elementary School Appointment Rules was framed and published on 1.10.1991 According to which the teachers training was not a requisite condition for appointment to the post of teacher in elementary school. On 8.10.1991, advertisement was issued by the Bihar Public Service Commission for appointment to the post of teachers in elementary school wherein it was clearly provided that teachers training is not requisite qualification for appointment but the trained teachers shall be given preference. In pursuance of the said advertisement about 25,000 teachers were appointed. After appointment about 79% teachers had been sent for training and they have completed the training but no examination has been held. At this stage, it would be proper to mention that the decision of the State Government doing away with the requirement of teachers training as a condition for appointment was challenged before this Court and the writ applications were dismissed and the SLP No. 23187 of 1998 was filed which was disposed of by the Apex Court on 5.9.1997 and the same is reported in (1998) 9 SCC 227. The Apex Court directed the State Government to take steps to finalise the syllabus and the training course for training of untrained teachers should commence from October, 1997. All the untrained teachers who have been appointed as per selection should be duly trained within two years of time. The fact is that up-till-now no examination has been held though as stated above majority of them has obtained training while in service.
5. As stated above, the State Government provided two scales by its resolution dated 18.12.1989 Thereafter again a controversy was raised by the State Government employees for giving them the same pay scale as were being given to the employees of the Central Government. The Government of Bihar, department of Finance on 2.1.1998 constituted another Fitment Committee to consider the question of payment of scale etc. as admissible to the Central Government employees. The Fitment Committee submitted its report with regard to elementary school. The Committee noticed that in a central school qualification for teachers training was a mandatory condition for appointment and no person without teachers training has been appointed in the Central School. However, Fitment Committee provided two scales; one for matric trained teacher and the other for matric untrained teachers irrespective of their qualifications. After receipt of the aforesaid recommendation, the Finance Department, Govt. of Bihar accepted the recommendation with modification and issued a resolution on 8.2.1999 revising the pay scales of its employees including the elementary school teachers with effect from 1.1.1996 But the fact remained that according to aforesaid resolution of the State Government dated 8.2.1999 one scale was provided to the matric trained teachers (Rs. 4500-7000/-) and a lower scale was provided to the untrained teachers even though they have higher qualifications. The said decision of the State Government led to resentment among the elementary untrained teachers and the matter was again considered by the State Government and it issued circular dated 25.6.1999 wherein it was provided that all untrained teachers who had completed one year in service training by 1.1.1996 but could not pass the examination due to non-holding of examination will be provisionally allowed the scale of matric trained subject to the condition that they have to pass the training examination in the next examination failing which the amount will be recovered from them.
6. The said circular was challenged before this Court in CWJC No. 7103 of 1999 by those teachers who were having higher qualification but were given untrained matric scale because of non passing of the training examination. This Court allowed the aforesaid writ application on 17.5.2000 and directed the State Government to consider the matter as to whether the untrained teachers having higher qualification can be given the scale higher than the untrained matric scale. While the aforesaid matter was pending before this Court, the employees of the State Government in various departments raised their grievance before the State Government with regard to recommendations of the Fitment Committee and the decision of the State Government accepting the aforesaid recommendation. Thereafter the State Government constituted a Fitment Appellate Committee by notification dated 15.1.2000 presided over by a learned Single Judge of this Court who has disposed of the writ applications out of which the present appeals arise. The term of the reference was to consider the grievances of different organisations of the employees of the State Government with regard to recommendations made by the Fitment Committee and decision taken by the State Government on the basis of the said recommendation. The Fitment Appellate Committee made recommendation after hearing the grievances of the employees including the teachers of the elementary school and its recommendations with regard to teachers of elementary schools are contained in paragraphs 31, 32 of the report. According to the recommendation, untrained graduate teachers were also provided with matric trained scale on provisional basis but such teachers were asked to complete training programme on their turn and clear the examination failing which they would have to revert to the scale of untrained teacher. No recommendation was made with regard to untrained intermediate teachers and other categories. The State Government did not take any final decision on the said recommendations. In the meantime, the aforesaid writ application being CWJC No. 7103 of 1999 was disposed of on 17.5.2000 quashing the decision of the State Government dated 25.6.1999 Thereafter the State Government issued an order dated 16.1.2000 reiterating its decision dated 8.2.1999 that teachers' training was a condition precedent for grant of matric trained scale and those teachers who were untrained cannot be given the matric trained scale and the amount already paid to them should be recovered in 20 equal instalments. Thereafter the said decision was challenged before this Court and the learned Single Judge after hearing the same issued directions as mentioned above.
7. Mr. Basudeo Prasad, Senior Advocate appearing for the appellant in LPA No. 1258 of 2001 submitted that the learned Single Judge being the Chairman of the Fitment Appellate Committee made recommendations in favour of certain category of teachers and rejected the claim of other category of teachers and as such he should not have heard the same matter on judicial side and issue directions to implement its own recommendations as Chairman of the Fitment Appellate Committee. According to him, the judgment is vitiated by judicial bias.
8. Dr. Sadanand Jha, Senior Advocate appearing for the appellant in LPA No. 1317 of 2001 and Mr. R.K Dutta, SC 9 appearing on behalf of the appellant-State in LPA No. 95 of 2002 did not go to the extent of saying that the judgment is vitiated by bias, but submitted that the propriety demanded that the learned Single Judge should not have heard the matter as his recommendations were also under challenge in the writ applications.
9. Mr. Rajendra Prasad Singh, Senior Advocate appearing for the appellants in LPA Nos. 1322, 1323, 1331, 1395 and 1430 of 2001 and Mr. Ganesh Pd. Singh, Senior Advocate appearing on behalf of the intervenor respondent in the LPA No. 95/2002 and Mr. Vinod Kumar Kant senior advocate appearing on behalf of the intervenor-respondents in LPA No. 95 of 2002 on the other hand submitted that no objection was raised before the learned Single Judge by any of the counsel that the matter should not be heard by him and as such at this stage, the said objection cannot be entertained.
10. Mr. V.K Kanth, Senior counsel further submitted that the learned Single Judge being the Chairman of the Fitment Appellate Committee was well acquainted with the entire facts regarding the matter in controversy and that helped him to arrive at a just decision in the case.
11. As learned counsels of some of the appellants raised question that the matter should not have been heard by learned Single Judge on the said ground, we heard learned counsel for the parties on the said point indicating clearly that this point will be decided first and if the submission will not find favour with the Court then the parties will be allowed to address the court on merit.
12. The fact remains that the Hon'ble Judge who has decided the present cases was the Chairman of the Fitment Appellate Committee and in that capacity he has made recommendation in favour of certain class of untrained matric teachers who have higher qualifications and has not allowed the claim of untrained intermediate teachers. One of the grievances in the writ applications was made by the intermediate untrained teachers for treating them similar to the graduate untrained teachers whose claim was negatived by the Fitment Appellate Committee. The matter was considered and directions have been issued to implement the recommendations made by him as Head of the Committee as stated above and the claim of untrained intermediate teachers has been rejected.
13. People confidence is foundation of judiciary. If it is shaken then the system will crumble like cards. The judicial proceedings are to be decided with unbias mind. The basic requirement of judicial adjudication is that a judge should be neutral and impartial and decide the controversy without pre-disposition. The principle governing the “doctrine of bias” are well settled and they are, (i) no man shall be a Judge in his own cause, (ii) justice should not only be done but manifestly and undoubtedly seen to be done. The Judges act in trust and they are accountable not only to the society but to the great Master, Author and Founder of Society. In this connection, it is useful to refer the statement of Edumund Burke:
“All persons possessing a portion of power ought to be strongly and awfully impressed with an idea that they act in trust, and that they are to account for their conduct in that trust to the one great Master, Author and Founder of Society.”
Lord Hewart C.J in F. v. Sussex JJ. ex p. McCarthy (1924) 1 KB 256 observed that:
“It is fundamental importance that justice should not only be done but should manifestly and undoubtely be seen to done.”
Recently the Apex Court in the case of State of West Bengal v. Shivananda Pathak, reported in (1998) 5 SCC 513 considered the meaning and scope of judicial bias and held that.
“Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in a particular manner, so much so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartiality in a particular case.”
14. It was further held that it may not always be possible to furnish actual proof of bias. But the Courts, for this reason, cannot be said to be in a crippled state. There are many ways to discover bias; for example, by evaluating the facts and circumstances of the case or applying the tests of “real likelihood of bias” or “reasonable suspicion of bias”. Bias may have many forms; it may be pecuniary bias, personal bias, bias as to subject matter in dispute, or policy bias etc. or bias on account of judicial obstinacy. Once the bias of any kind is proved, the final decision rendered in a case is vitiated. After having given thoughtful consideration to the entire facts and circumstances of the case, we are of the view that it is not necessary to dwell upon the question of bias. However, the fact remains that the Hon'ble Judge has dealt with the matter in controversy earlier as Chairman of the Fitment Appellate Committee and in that situation relying upon the dictum of Lord Hewart, C.J as quoted above that justice should not only be done, but should manifestly and undoubtedly be seen to be done without meaning anything against the Hon'ble Judge, we are of the view that the order rendered by the learned Single Judge is fit to be set aside.
15. In the result, all the appeals are allowed and the order passed by the learned Single Judge is set aside. Let the matter be heard again afresh by another learned Single Judge of the Court in accordance with the observations made above.
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