1. Heard learned counsel for the parties as with regard to the following relief prayed in this writ application:—
“for quashing the order of the District Superintendent of Education, respondent no. 3 contained in Memo No. 6922.Hajipur dated 9th of November, 2012 (Annexure-2), by which it has been communicated to the petitioner that graduate trained teachers scale given to the petitioner was cancelled in meeting dated 25th of September, 1995 and for stay of operation of the order contained in Memo No. 6922.Hajipur dated 9th of November, 2012 (Annexure-2), during pendency of this writ application.”
2. in the considered opinion of this Court once this aspect is admitted by Srinandan Prasad Singh, learned counsel appearing on behalf of the petitioner that the petitioner did not possess the requisite qualification for the post of B.A trained teacher i.e, graduation degree and had only possessed Sahitya Alankar degree, there would be no difficulty in approving the impugned order dated 9.11.2002 or consequential action taken by the authorities in both cancelling the order of promotion of the petitioner as also directing for recovery of excess amount drawn by the petitioner as B.A trained teacher as also taking any consequential action.
3. This Court in fact does not find any error in the decision either reverting the petitioner back to his parent post of Matric trained teacher or recovering the excess amount drawn by the petitioner as B.A trained teacher, inasmuch as, the degree of Sahitya Alankar will not qualify for promotion on the post of B.A trained teacher as has been decided by a Division Bench of this Court in its order dated 27.11.2012 passed in C.W.J.C No. 13836 of 2012* (Muralidhar Singh v. State Of Bihar), wherein, it has been held as follows:—
“Under order dated 14th August 2012 made by the learned Single Judg-v, this Petition has been referred to the Division Bench for consideration whether the qualification of Sahitya Alankar from Hindi Vidyapeeth at Deoghar is equivalent to Graduation for services and promotion in the State of Bihar more particularly in the light of the Education Code and the decision of the State Government dated 11.1.1991 and what may be contained in letter no. 1346 dated 27.8.2008”.
The petitioners are teachers in the Government Upgraded Middle Schools. While in service, the petitioners have acquired qualification of Sahitya Alankar from, Hindi Vidyapeeth at Deoghar. On the strength of the said qualification, the petitioners claim promotion to Grade-6. Since, their names were not included in the list of teachers eligible for promotion to Grade-6, they approached the Divisional Commissioner, Bhagalpur. The Divisional Commissioner has, under his order dated 24th February, 2012, rejected the claim. Therefore, this Petition.
Learned Advocate Mr, Dinu Kumar has appeared for the petitioners. He has submitted that the Government of Bihar has, under its Personnel and Administrative Reforms Department, recognized and decided the equivalence of the certificates issued by the Hindi Vidyapeeth, Deoghar. As far as Sahitya Alankar is concerned, it is considered to be equivalent to B.A (Bachelor's degree in Arts).
Petition is contested by the State Government. The State Government has relied upon the Order dated 27th August, 2008 made by the Government of Bihar in its Human Resources Developmerit Department. According to the said Order, the certificate of Sahitya Alankar issued by the Hindi Vidyapeeth, Deoghar equivalent to B.A is not recognized by the State of Bihar for the purpose of appointment in Secondary, and Higher Secondary Schools under
On reading of the above referred two Orders issued by the Government of Bihar, it appears that the Government of Bihar has in a general accepted the equivalence of Sahitya Alankar issued by the Hindi Vidyapeeth, Deoghar to that of B.A However, for the purpose of appointment of the teachers, the said qualification is not recognized.
We are informed that “the petitioners are governed by the Bihar Taken Over Elementary School Teachers' Promotion Rules, 1993 (hereinafter referred to as “the Rules). Clause-8 of subsection (1) of Rule 2 of the Rules defines “Grade-6” to mean “Trained graduate Selection Scale Rs. (2200-4000)”. Clause 14 of the said sub-section defines the term “Trained graduate” to mean “those persons who are graduates or possess equivalent qualification and are trained”. Rule 5 of the said Rules provides for “eligibility”. Clause 3 of the said Rule 5 provides, “for promotion to Grade-6-Trained postgraduate and minimum 12 years of service in Grade-5, or trained graduate and minimum 18 years of service in Grade-5”.
The petitioners claim that they having obtained qualification of Sahitya Alankar from Hindi Vidyapeeth, Deoghar;. they possess qualification equivalent to graduate; the petitioners being trained graduates, are entitled to promotion to Grade-6.
The question that precipitates is whether the qualification of Sahitya Alankar possessed by the petitioners is equivalent to graduate and that the petitioners are eligible for promotion to Grade-6.
We have to refer to Articles 358 and 359 of the Bihar Education Code. Article 358 deals with “recognition of certificate from National Universities and the equivalence with respect to the degrees granted by the recognized University”. As far as Hindi. Vidyapeeth, Deoghar is concerned, the only recognized qualifications are “Praveshika” equivalent to Secondary School Examination or Matriculation and Sahitya Bhushan equivalent to Intermediate. It further says that the said recognition was extended up to 31st December, 1987. Meaning thereby that since 1st January, 1988 even those qualifications are not considered equivalent for the purpose of appointment of teachers. Evidently the qualification of Sahitya Alankar is not recognized for the purpose of appointment of teachers.
Article 359 of the Bihar Education Code makes the intention of the State Government not to engage any teacher who does not posses a Secondary School Examination certificate from a recognized Board or a degree from a statutory University. It reads thus:
“Article 359. Appointment to teacher's post forbidden on the basis of equivalence of Certificates.— In order to raise the quality of teaching in school, it has been decided by the State Government that only those persons who have passed examinations held by the Bihar School Examination Board, Central Board of Education, Secondary Examination Boards of other States or Degrees obtained from statutory Universities shall be compulsory for appointment to the post of teachers in the Primary, Middle and High schools.
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(3) But if teachers of Primary, Middle and High Schools pass examination equivalent to Intermediate, Graduate, and Post-Graduate Degrees whose equivalence is recognized by the Personnel Department as mentioned in the preceding Article, may be promoted to higher pay-scale beyond matriculation. This facility shall not be given to Middle trained teachers for getting Matric trained pay-scale on the basis of equivalence. For getting Matric trained scale of pay, a Middle trained teacher must pass the Secondary School Examination from the Bihar School Examination Board”.
It may be reiterated here that the qualification of Sahitya Alankar is not mentioned in the preceding article, Article 358.
It is thus clear that the qualification of Sahitya Alankar secured from Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment and promotion of the teachers.
In above view of the matter, we hold that in the State of Bihar the certificate of Sahitya Alankar conferred by the Hindi Vidyapeeth, Deoghar is not recognized for the purpose of appointment or promotion of a teacher. The same view has been expressed by this Court in the matters of State of Bihar v. Mamta Kumari [2010 (4) PLJR 318]; and of Poonam Sharrria v. State of Bihar [2012 (1) PLJR 226].
For the aforesaid reasons, we see no merit in this Petition. Petition is dismissed in limine.”
4. By now it is also well settled that if a person is not entitled to financial benefit such amount cannot be retained only on the ground that there is no fraud or misrepresentation on the part of the petitioner.
5. The issue with regard to the payment of excess amount and its recovery was gone into at length by the Apex Court in the case of in the case of Chandi Prasad Uniyal v. State of Uttarakhand reported in (2012) 8 SCC 417 : [2012 (4) JUR (SC) 93] wherein after considering all the earlier judgments including the case of Syed Abdul Quadir v. State of Bihar reported in (2009) 3 SCC 475 : [2009 (2) PLJR (SC) 74], it was held as follows:—
“13. We are not convinced that this Court in various judgments referred to hereinbefore has laid down any proposition of law that only if the State or its officials establish thathere was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to hereinbefore turned on the peculiar facts and circumstances of those cases either because the recipients had retired or were on the verge of retirement or were occupying lower posts in the administrative hierarchy.
14. We are concerned with the excess payment of public money which is often described as “taxpayers' money” which belongs neither to the officers who have effected overpayment nor to the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in in such situations. The question to be asked is whether excess money has been paid or not, may be due to a bona fide mistake. Possibly, effecting excess payment of public money by the Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism, etc. because money in such situation does not belong to the payer or the payee. Situations may also arise, where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been received by the recipients also without any authority of law. Any amount paid/received without the authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.
15. We are, therefore, of the considered view that except few instances pointed out in Syed Abdul Qadir case and in Col. B.J Akkara case, the excess payment made due to wrong/irregular pay fixation can always be recovered.”
6. Thus for the reasons indicated above, this Court would find it difficult to give any relief to the petitioner. It is,. accordingly, dismissed.
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