IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8483 of 1997 1. Rajiv Lochan Verma, Son of Sri Mahabir Lal Das, resident of Village Jagatpur, P.O. Barail, District Supaul. 2. Jageshwar Sahu, Son of Sri Manghi Ram Sahu, Resident of Village Panchgachiya, Police Station Marauna, District Supaul. 3. Sant Lal Yadav, Son of Sri Ayodhi Yadav, Resident of Village Khakhai, P.O. Kadampura, Police Station Kishanpur, District Supaul. 4. Baidyanath Yadav, Son of Sri Nagat Lal Yadav, Resident of Village Panchmunda, Police Station Marauna, P.O. Ganora, District Supaul. 5. Jahuri Yadav, Son of late Domin Yadav, Resident of Village Basbitti, Police Station and District Supaul. ------- Petitioners Versus 1. The State of Bihar. 2. Director-cum-Joint Secretary, Primary Education, Government of Bihar, Patna. 3. District Education Officer, Saharsa. 4. District Education Officer, Supaul. 5. District Superintendent of Education, Saharsa. 6. District Superintendent of Education, Supaul. 7. District Collector, Supaul. 8. District Collector, Saharsa. 9. District Treasury Officer, Saharsa. 10. District Treasury Officer, Supaul. -------- Respondents ----------- 7 22.07.2010 Heard learned counsel for the petitioners and counsel for the State. The prayer of the petitioner in this writ application reads as follows:- “1. That the petitioners seek indulgence of this Hon‟ble Court for issuance of a writ in the nature of „Certiorari‟ for quashing an order contained in memo no.- 1649-19 dated 2nd August 1997 issued 2 by the District Superintendent of education, Saharsa; directing the petitioners to deposit the entire sums in one lump-sum which the petitioners had withdrawn vide letter no.-223-21 dated 19.3.97 issued by the same authority. The impugned order is being include herewith in the relief portion itself for the sake of convenience.” Learned counsel for the petitioners with reference to the aforementioned prayer would submit that once the District Superintendent of Education, Saharsa by his order dated 19.3.1997 as contained in Anenxure-4 had granted petitioners the benefit of payment of salary from December, 1976 to 23.12.1989, the same could not have been unceremoniously taken back by issuing the impugned order dated 2nd August, 1997 as contained in Annexure-1 and in this context, the plain and simple submission is that such action on the part of the District Superintendent of Education, Saharsa is in violation of principle of natural justice. In this context, he also relies on the statement made in paragraph no.17 of the writ application, which reads as follows:- 3 “17. That it is stated and submitted that no notice, show-cause or any kind of explanation has ever been given to the petitioner prior to the issuance of impugned order.” Counsel for the State on the other hand would submit that the District Superintendent of Education, Saharsa has explained in his counter affidavit that the order in favour of the petitioner vide Annexure-4 dated 19.3.1997 was issued by the District Superintendent of Education, Saharsa on a misrepresentation of the order of the Director, Primary Education and in this context, he would rely on paragraph no.5 of the counter affidavit, which reads as follows:- “5. That so far the statement made in paragraph no. 5,6,7,8,9,10,11 and 12 of the writ petition are concerned are matter of records but it is relevant to mention that the order contained in memo no. 223-21 dt. 19.3.1997 contained in Annexure 4 to the writ petition was passed on the basis of the not too clear direction of the Director Primary Education vide letter no. 58 dt. 6.3.58 which attempts to define lawful dues 4 as the payments to be made to the petitioner against the work done by them and the respondent (District Superintendent of Education) took this to be the date with effect from which the schools were taken over i.e. 1.1.76 but when the District Education Officer, Saharsa through his letter no. 1029 dt. 21st of July 1997 (annexure 6 series) videly referred to the departmental direction for continuing the length of services contained in memo no. 330 dt. 8.3.90 issued earlier by the Director Primary Education-cum-Joint Secretary vide Annexure 6 series the respondent was constrained to pass the impugned order contained in Annexure I to the writ petition primarily to check the heavy loss to the Public exchequer as the responsibility fall flately on him in his capacity as the responsible public servant. It is further submitted that the petition are to get their dues from the dates of the approval of their services only because these are the dates on which their services were finally confirmed and they became full fledged Govt. Servant and as such entitled 5 for the pay and perks payable to a Govt. servant and only such dues are to be held law ful dues. And seen thus the earlier order of payment as contained in memo no. 223-21 dt. 19.3.1997 (Annexure 4) was not proper and the respondent did the right thing to withdraw the same to avoid any further loss to the exchequer vide Annexure I.” In the opinion of this Court, the issue actually, which would go to the root of the matter, is entitlement. The petitioners’ were initially appointed by the private Managing Committee in a private managed private/middle school and subsequently, their services were taken over by the Bihar Non- government Elementary Schools (taking over of Management and Control) 1976. Section 3 & 4 thereof, being relevant for the purpose of this case is extracted hereinbelow:- “3. Taking over of Non-Government Elementary schools by State Government.- (1) Elementary schools managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and Improvement scheme shall be deemed to have been taken 6 over by the State Government with effect from the 1st day of January, 1971. (2) Aided Elementary schools, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for this purpose. (3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. 4(a) With regard to the taking over of Elementary schools other than those mentioned in sub-sections (1) and (3) there shall be a District Committee in each District which shall examine the feasibility of taking over of such schools by the State Government and which shall consist of the following members: (i) Deputy Development Commissioner /Administrator, District Board – Chariman. (ii) District Superintendent of Education – Secretary. Members (iii) District Education Officer, (iv) District Inspector of schools, (v) Subdivisional Education Officer of the concerned 7 subdivision, and (vi) Deputy Inspector of schools concerned. (b)The State Government may, from time to time make changes in the personnel of the District Committees so constituted. 4. Consequences of taking over. – (1) All the asserts and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officer, teacher or other employee holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. 8 (3) The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, subdivisional Education officer- cum-Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over bythe Government and such employees shall in case of their opting to Government servants with effect from the date of enforcement of this Act.” It would, therefore, be clear that each of the school, which was supposed to be taken over, had to contain the terms and conditions of such take over. It is the case of the respondents that their services were taken over only from the date of notification and that is how the approval was given also from the same date. It is true that the District Superintendent of Education, Saharsa has taken a plea of not having a clear instruction from the Director to be the reason for Annexure-4 but then at the end of the day, the issue of entitlement was to be gone into by the District Superintendent of Education himself as he was the district head 9 and the cadre head on the post of teachers of primary education. Therefore, if by mistake some benefit which was not legally admissible to the petitioners in view of Section 3 & 4 of the Take Over Act, the same was capable of being withdrawn and to that extent, this Court would not find any flaw in Annexure-1. Learned counsel for the petitioners, however, has a valid point when he would submit that assuming that the petitioners were given an incorrect benefit of retrospective pay of last thirteen years from 1976 to 1989 but then such benefit was on account of an order in their favour which could have been only withdrawn after affording an opportunity of hearing. To that extent, counsel for the State will have no answer save and except to rely on paragraph no.5 as quoted above. In fact, the respondents have either purposely or cleverly not answered the specific averments made in paragraph no.17 of the writ application, inasmuch as, paragraph nos. 6 & 7 of the counter affidavit deals 10 with paragraph nos. 15 & 16 of the writ application whereas paragraph no.8 of the counter affidavit deals paragraph no.18 of the writ application. In fact, there is no specific denial of the categorical statement made by the petitioners in paragraph no. 17 and therefore, it must be held that the impugned order was passed in violation of the principle of natural justice. Once this Court would come to the conclusion that the petitioners were denied such opportunity of personal hearing, all that can be done is to remit the matter back to the authority, who now would give opportunity of hearing to the petitioners and take final decision in the matter with regard to the entitlement for payment of salary for the period of thirteen years. In order to expedite the process, the petitioners are hereby directed to file their individual representation with their explanation as to the justifiability of Annexure-4, the earlier order in their favour and treating Annexure-1 to be the show-cause notice, they should file their explanation as 11 to how they would be entitled for payment of salary for the period from December, 1976 to 1989. The District Superintendent of Education, thereafter, on receipt of such representation will place the matter before the District Education Establishment Committee and would obtain its order which will be individually communicated to the petitioners and if it is found that the petitioners were not entitled for payment of salary in view of the provision in the notification of take over Act, the recovery from the petitioners either from the salary or from the retirement benefit would be made in easy installments. On the other hand, if it is found that there was no flaw in making payment of salary to the petitioners for the period December, 1976 to 1989 and any amount has been recovered from them, the same will be refunded back to the petitioners within a period of three months of passing of such order. Till such exercise is completed, the interim order of this Court dated 30.9.1997 restraining the respondents from making any recovery shall continue. 12 With the aforementioned observation and direction, this application is disposed of. Rsh (Mihir Kumar Jha, J.)