- (1.) In the instant writ application, the petitioners are aggrieved by the decision dated 05.07.2008 (Annexure-4 to the writ petition) by which direction has been made to make correction in the service book of the petitioners considering their recognized service with effect from the date of recognition of school and not from the date on which the school was ordered to be established by the Board as also to make recovery of the amount.
(2.) The factual matrix, as delineated in the writ application, in a nutshell are that petitioners were initially appointed by the Managing Committee of T.V.S High School of Jagannathpur and the dates of appointments have been mentioned in a tabular form in para 4 of the writ application. The T.V.S High School, Jagannathpur was started in the year 1969 but approval was granted to establish the school by the Board after due inspection and recommendation by the committee of the Board. The said approval was granted on 04.12.1978 and later permanent recognition was granted to the school on 27.11.1979. Thereafter, the school was taken over by the State Government under the provision of Bihar Non-Government (Taking over of Management and Control) Act, 1980. It has been stated that even prior to taking over the school by the Government, the statutory body i.e. the Board recognized the services of the petitioners with effect from 04.12.1978, the date when the school was allowed to be established by the Board under the provisions of Bihar Secondary Education Board Act, 1976 and they were paid salary in the scale of Assistant Teacher with effect from 27.11.1979, when the school was given permanent recognition by the Board under the BSEB Act, taking their date of recognized service with effect from 04.12.1978. Thereafter, petitioners and other teachers were given promotion to Junior Selection Grade by the competent authority but curiously the respondents after about three decades have taken steps to make recovery from the retiral benefits of the petitioner no.1, who retired on 31.12.2008 on the ground that his date of service should not be counted from 04.12.1978 but should be counted from 27.11.1979 and respondents have taken action in pursuance to letter dated 05.07.2008 as per Annexure-4 to the writ application. Being aggrieved by the impugned action of the respondents vide letter dated 05.07.2008 (Annexure-4), the petitioners having no other efficacious and alternative remedy, approached this Court under Article 226 of the Constitution of India, invoking extraordinary jurisdiction of this Court for redressal of their grievances.
(3.) Learned senior counsel for the petitioners has strenuously urged that as per the judgment of the Hon'ble Supreme Court in case of Syed Abdul Qadir and Ors. Vs. State of Bihar and Ors., 2009 3 SCC 475 which was also similar matter arising out of pay fixation. The Hon'ble Supreme Court has issued general direction for refund in paragraph 61 of the judgment, which is held as under: "61. In the result, the appeals are allowed in part; the impugned judgment so far as it relates to the direction given for recovery of the amount that has been paid in excess to the appellant teachers is set aside and that part of the impugned judgment whereby it has been held by the Division Bench that the amended provisions of FR 22-C would apply to the appellant teachers is upheld. We direct that no recovery of the excess amount, that has been paid to the teachers of secondary schools, be made, irrespective of the fact whether they have moved this Court or not. We also direct that the amount that has been recovered from some of the teachers, after the impugned judgment was passed by the High Court, irrespective of the fact whether they have moved this Court or not, be refunded to them within three months from the date of receipt of copy of this judgment." Learned senior counsel has submitted that recovery of excess amount paid to the petitioner is clear violation of the general direction issued in case of Syed Abdul Qadir and Ors. .;