NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 5519 OF 2002

The State of Bihar & Ors.                            .....     Appellants

Versus

Krishna Paswan & Anr.                           ..... Respondents  

J U D G M E N T

Lokeshwar Singh Panta, J.

1. This  appeal  arises  out  of  judgment  and  order  dated

27.06.2001 of the High Court of Judicature at Patna in Letters

Patent Appeal No. 1590/99 whereby and whereunder the High

Court dismissed the appeal and upheld the judgment of the

learned  Single  Judge  passed  in  CWJC  No.  10448  of  1997

dated 09.02.1999.

2. Facts, in brief are as under:-

In  the  year  1987,  the  respondents  herein  along  with

others were appointed as Assistant Teachers by the District

Superintendent  of  Education,  Gaya  vide order  contained  in

Memo No. 8158-8408 dated 25.6.1987.   The relevant terms

and conditions contained in the said appointment letter were

that the Matric Trained Teachers would get higher pay scale of

Rs.580-860/- whereas the Matric Untrained Teachers would

get lower scale of pay of Rs. 535-765/-.  The respondents after

appointment joined their respective posts and were not paid

salary.  They, therefore, filed CWJC No. 2099 of 1992 before

the High Court of Judicature at Patna.  The stand of the State

of Bihar in their counter affidavit before the High Court was

that  the  respondents  had  failed  to  submit  their  requisite

educational qualification certificates which were pre-requisite

for valid appointment, as such they cannot be deemed to be in

service.   The  High  Court  disposed  of  the  writ  petition  by

directing  the  respondents  to  file  relevant  educational

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certificates  and  the  State  was  also  directed  to  decide  their

claim.   In  pursuance  of  the  order  of  the  High  Court,  the

respondents-appointees  produced  the  relevant  testimonials

but the State Government insisted upon them to produce the

certificates pertaining to their training.   

3. The affected appointees again approached the High Court

by  way  of  second  writ  petition  (being  CWJC  No.  12322  of

1993) which came to be rejected by order dated 13.01.1995.  

4. Being  aggrieved,  the  respondents-untrained  teachers

filed Letters Patent Appeal No. 102/1995 which was decided

by the Division Bench on January 27, 1997.  The operative

directions contained in the said order read as under:-

“Admittedly,  the  appellants  are  not  trained teachers.   In  this  background,  according  to this court, there is no question of production of training certificate by the appellants.  It is not  in  dispute  that  even  untrained  persons could  have  been  appointed  as  Assistant Teachers  in  the  untrained  scale  of  pay. Further, it is not the case of the respondents that they have terminated the services of the appellants.  In this background, according to this  court,  the  respondents  cannot  deny  the

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salary  in  favour  of  the  appellants  on  the ground that the appellants had produced the training  certificate,  if  appointments  of  the appellants  have  been  made  in the untrained scale of pay of Assistant Teachers. Accordingly,  the  respondents  are  directed  to look  into  the  appointment  letters  of  the appellants dated 25.6.1987.  If the appellants have  been  appointed  as  untrained  Assistant Teachers,  without  asking  the  appellants  to produce  the  training  certificates,  the respondents will pay untrained scale of pay in favour  of  the  appellants  for  the  period  they have  actually  performed  their  duty.   The decision is to be taken and admitted dues are to be paid in favour of the appellants, within a period  of  four  months  from  the  date  of receipt/production of a copy of this order.”

The above decision attained finality.

5. In compliance of the judgment of the Division Bench in

LPA No. 102/1995, the District Superintendent of Education,

Gaya, held a meeting of District Establishment Committee on

08.06.1997 and in the said meeting it was decided that the

services of the respondents shall be terminated from the date

of appointment as they had no training.  As a result of the

decision of the District Establishment Committee, the District

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Superintendent  of  Education  by  Memo  No.  2099  dated

25.06.1997 terminated the services of the respondents.

6. Feeling  aggrieved,  the  respondents-untrained  teachers

filed one more CWJC No. 10448 of 1997 before the High Court

of Judicature at Patna.  The learned Single Judge disposed of

the said writ petition on 09.02.1999 at the admission stage

itself with a direction to the State to pass an appropriate order

about  the  claim  of  the  respondents-untrained  teachers  for

payment of their salary in the untrained scale of pay in the

light of the findings recorded by the Division Bench in LPA No.

102/1995 and will pass such order within a period of three

months from the date of service of the copy of the said order.

7. Aggrieved by the order of the learned Single Judge, the

State preferred LPA No. 1590 of 1999 which was dismissed by

the  High  Court  vide order  dated  27.06.2001  and the  order

reads as  under:-

“The question involved in this appeal is as to whether the respondents were  appointed as trained teachers or untrained teachers.  We did ask the counsel for the State to produce a copy  of  the  advertisement  but  he  has  not

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been able to produce the same.  On the other hand,  he  stated  that  no  advertisement  was made for the said appointment.  

From  perusal  of  the  office  order  whereby large  number  of  teachers  were  appointed  a copy  of  which  has  been  annexed  as Annexure-2  to  the  application,  it  is  evident that  direction  was  given  to  appoint  trained teachers  and  in  case  of  non-availability  of trained teacher,  untrained teachers  may be appointed.   In  that  view of  the  matter,  the respondents-untrained  teachers  were appointed  as  untrained  teachers.   Thus,  it cannot be said that they got appointment by practising  fraud  or  making misrepresentation.   In  our  view,  there  was no case  of  fraud or misrepresentation  on  the  part  of  the respondents who were appointed in the year 1987 and continued on the said post, no case for termination of their services is made out and learned Single Judge rightly allowed the writ application filed by them challenging the termination order.  

In the result, the appeal is dismissed.”

8. Now,  the State of Bihar by special  leave has filed this

appeal  before  this  Court  challenging  the  correctness  and

validity  of  the  impugned  order  of  the  High  Court  dated

27.06.2001.

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9. We have heard the learned counsel for the parties.  The

learned counsel for the State contended that the High Court

fell  into  an error  in  holding  that  the  respondents  have  not

committed any fraud and misrepresentation of facts as alleged

against them.  According to the learned counsel, after holding

an inquiry into the appointments of the respondents, it was

found that the respondents had appeared in the interview as

Matric-Trained  Teachers  and  obtained  the  appointment

against the said posts, whereas they have not undergone any

training and as such they made false representation and got

appointments by misrepresentation.   

10. Per  contra,  the  learned  counsel  appearing  for  the

respondents-untrained  teachers  contended  that  the

respondents  have  applied  against  the  posts  of  untrained

teachers  and  were  duly  appointed  as  Matric  Untrained

Teachers,  due  to  non-availability  of  trained  teachers.   He

contended that the judgment and order of the learned Single

Judge confirmed by the Division Bench of the High Court do

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not  suffer  from  any  infirmity  or  perversity  warranting

interference in this appeal.

11. It is not in dispute that at the time of appointment of the

respondents,  they  had  produced  the  relevant  educational

certificates.   It  is  also  not  in  dispute  that  they  have  not

undergone the training of teachers and they applied for the

posts  of  Assistant  Teachers  in  the  category  of  Matric

Untrained Teachers having qualified Matric examination.  It is

also not in dispute that the State Government, in the absence

of  availability  of  trained  teachers,  appointed  the  untrained

teachers.   

12. In the factual situation narrated hereinabove, it was the

specific  case of  the respondents before  the High Court  that

they  were  appointed  as  Matric  Untrained  Teachers  by  the

competent  authority  after  following  the  prevalent  and

established  procedures  and  they  have  secured  the

appointment as Matric Untrained Teachers and not as Matric

Trained  Teachers  as  alleged  by  the  State  Government.   In

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counter affidavit  filed by the respondents before  this Court,

they have categorically stated that they have never applied for

the posts of trained teachers nor supplied any documents of

training  nor  they,  at  any  point  of  time,  have  undergone

training.   They  have  never  been  paid  salary  of  trained

teachers.   The  record  shows  that  on  the  date  of  interview

conducted  by  the  District  Education  Establishment

Committee  in  its  meeting  held  on  01.05.1987,  the  Matric

Trained Teachers were appointed against the posts of Matric

Trained  Assistant  Teachers  and  the  respondents  were

appointed  as  Matric  Untrained  Assistant  Teachers  in  two

different  pay  scales  meaning  thereby  that  Matric  Trained

Assistant Teachers were given higher pay scale as compared

to Matric Untrained Assistant Teachers like the respondents.

The respondents have filed the requisite certificates regarding

their educational qualifications having qualified matriculation

examination and thereby they were qualified to be appointed

as Assistant Untrained Teachers without undergoing training.

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13. In this view of the matter, the order of termination of the

services of the respondents has been rightly held to be bad in

law by the High Court.  Appellants have failed to prove that

the  respondents  at  any  point  of  time  got  appointments  as

Matric  Trained  Teachers  by  practicing  fraud  or

misrepresentation.   Thus,  the  contentions  of  the  learned

counsel for the appellants do not merit acceptance.

14. In the result, this appeal deserves to be dismissed.  We

order accordingly.  We direct the appellants to reinstate the

respondents against the posts of Matric Untrained Assistant

Teachers,  but  on  the  facts  and  circumstances,  the

respondents will not be entitled for salary of past period when

they were out of job.  Compliance within three months. Parties

are left to bear their own costs.

........................................J.                                                 (R.V. Raveendran)

........................................J.                                                 (Lokeshwar Singh Panta)

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New Delhi, October 15, 2008.

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