CIVIL WRIT JURISDICTION CASE No.740 OF 1997 In the matter of an application under Article 226 of the Constitution of India DHARAMRAJ SINGH S/O- LATE SHEO SHANKAR SINGH, R/O- VILLAGE DONE, P.S. – DARAULI, DISTRICT - SIWAN VERSUS 1. The State of Bihar through the Director, Primary Education Cum Special Secretary, Govt. of Bihar, Patna 2. The Deputy Director, Primary Education, Govt of Bihar, Patna 3. The Regional Education Officer, Mairwa, P.S. Mairwa, District – Siwan 4. The Inspector of School, Siwan 5. The Deputy Inspector of Schools, Siwan, P.S. and District- Siwan 6. The Deputy Superintendent of Education, Siwan, P.S. and District Siwan 7.Sri Gorakh Nath Bhakla S/o- name not known, Head Master of Town Madhya Vidyalaya, Mairwa, District Siwan, resident of village Done, P.S.- Daraulti, District Siwan 8. Kumari Vidyawati, D/o- Sri Sugiwa Singh resident of village Done, P.S. Darauli, District - Siwan ******** For The Petitioner : Mr. RAJENDRA PRASAD SINGH SR. ADVOCATE Mr. SURESH PRASAD SINGH ADVOCATE For The Respondent : Mr. Shashi Shekher Pd. Sinha (JC to GP - IX) P R E S E N T THE HON'BLE MR. JUSTICE SHAILESH KUMAR SINHA SHAILESH KUMAR SINHA, J This application is for quashing the order dated 28th August, 1996 as contained in Annexure-1 rejecting the representation of the petitioner for recognizing his services as Government teacher and consequential relief of payment of due salary. In course of hearing, the learned - 2 - senior counsel for the petitioner confined his prayer with regard to the payment of salary as an Assistant Teacher with effect from the date the school in question was taken over by the State as per the notification dated 31st May, 1983 as contained in Annexure-6 read with the recommendation of the District Nationalization Committee in its meeting dated 12th September, 1977 as contained in letter no. 691 vide Annexure-5 of the application. The petitioner claims that since the school in question i.e. Town Medhya Vidyalaya, Mairwa was taken over on the basis of the recommendation of the District Nationalization Committee as contained in Annexure-5 followed by the notification issued by the respondent-State on 31st May, 1983, therefore, the petitioner having been appointed on 21st May, 1970 in terms of the resolution of the Managing Committee of the aforesaid school and joined in the said school on 1st July, 1970 as directed as per letter no. 78/70 dated 05.06.1970 (Annexure-2) was entitled to get the salary in the untrained scale with effect from the date when the school was formally taken over by the State Government in terms of Annexure- 6. The short facts is that the petitioner was appointed as an Assistant Teacher, Managing Committee of the aforesaid school as per the resolution on 21.05.1970 and as per letter no. 78/70 dated 05.06.1970 vide - 3 - Annexure-2 joined on 1.07.1970. However, while sending the list of the teachers at the time of taking over the school by the State Government, the concerned Head Master did not include the name of the petitioner. Nonetheless, the petitioner although continued to discharge the duty of a teacher, he was not being paid the salary payable to the untrained teachers on the wrong presumption that the services of the petitioner was not taken over. Petitioner represented but since the representations filed by him remained undisposed, filed a writ petition in this court vide C.W.J.C. No. 455 of 1984 which was finally disposed of by order dated 10th February 1996, as contained in Annexure-8 of the writ application. The court permitted the petitioner to file a fresh representation since the claim of the petitioner was an old one. The representation was filed as contained in Annexure-9 and the same was however, rejected by the Director of Primary Education as per the impunged order dated 20.08.1996 Vide Annexure-1. It is contented on behalf of the petitioner that as regards his appointment on the post of Assistant teacher on conjoint reading of the letter dated 5.06.1990 vide Annexure-2 read with the details with regard to the recognition of Town Madhya Vidyalaya, Mairwa duly signed by the Head Master of the School, as well as, the Secretary of the Managing Committee of the said school as - 4 - also the Deputy Inspector of School, Siwan on 25.05.1974 vide Annexure -10 it would appear that the date of appointment of the petitioner is 21st May, 1970 and followed by the similar entries in the documents regarding recognition of the said school as contained in Annexure- 11 which has been signed by the Secretary of the Managing Committee of the School as well as the Head Master on 5th January, 1977 vide Annexure-11 in which also the date of appointment of the petitioner is 21st May, 1970. Apart from the aforesaid documents learned counsel for the petitioner also relies upon his service book, copy of which has been annexed as Annexure-12 series duly signed by the Deputy Inspector of School, Siwan on 06.05.1980 in which it is categorically mentioned the date of appointment of the petitioner which is of before 01.01.1971 when Bihar Non-Government Elementary Schools (Taking over of Control ) Act 1976 came into force. The petitioner on the basis of the above documents submits that his appointment was undisputedly made on 21st May, 1970 and not after 01.01.1971 as alleged. In this connection learned counsel further relies upon the provision of Sub Section (2) of Section 4 of the aforesaid Act which is quoted below:- Sub Section (2) of Section 4:- “Every officer, teacher or other employee - 5 - 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” Therefore, the submission of the petitioner is that since he was appointed prior to 01.01.1971 when the aforesaid Act came into force therefore, the school on being taken over by the State in terms of the notification dated 31.05.1983 vide Annexure-6, the services of the petitioner is also transferred to the State Government from the date the school was taken over, as such, entitled to the salary on untrained scale as he was untrained. The petitioner submits that the stand of the State that since petitioner was not appointed prior to 01.01.1971 is not - 6 - entitled to the reliefs prayed for gets disapproved on the basis of at least the aforesaid documents contained in annexures 10, 11 and 12 referred to as above. Learned counsel appearing for the State submits that in view of the decision of the Hon’ble Supreme Court in the Case of State of Bihar Vs. Laldeo Prasad Yadav vide Civil Appeal No. 847 of 1994 disposed of on 21st January, 1994 annexed as Annexure-A to the counter affidavit as also order passed in S.L.P. No. 2446 of 1995 vide Annexure-B, petitioner cannot be said to be a Government Servant in terms of Sub Section (2) of Section 4 of the aforesaid Act for the simple reason that the petitioner was appointed after 1.1.1971 as an untrained teacher. However, learned counsel is not in a position to refute the documents relied on by the petitioner as contained in Anexures-10,11 and 12 as referred to above in support of the contention that he was appointed on 21st May 1970 i.e. prior to 01.01.1971. No affidavit in reply has been filed on behalf of the State disputing the above documents. Learned counsel appearing for the petitioner submits in reply that the aforesaid two decisions/orders of the Hon’ble Supreme Court as contained in Annexure-A and Annexure-B are not applicable in the facts of the present case. Admittedly, the petitioners in the aforesaid two cases were appointed after 01.01.1971 whereas the - 7 - petitioner in the instant case was appointed prior to 01.01.1971 before the aforesaid Act of 1976 came into force and as such, those two decisions of the Hon’ble Supreme Court are of no help to the State. Considering the submission of the parties and the pleadings on the record and the documents vide Annexure- 10,11 and 12 series it appears that there remains no dispute between the parties that the petitioner was appointed prior to 01.01.1971, the date of enforcement of the aforesaid Act in the light of the documents contained in Annexure-10,11 and 12 series which are not disputed by the State neither during the hearing nor by filing any affidavit as noticed above. It is also not in dispute that the petitioner was untrained teacher at the time of taking over the school and remained untrained. In the above circumstances, it appears that the school in question was taken over by the State vide Annexure-6 the services of the petitioner who was admittedly working in school as Assistant Teacher in terms of the provisions contained in Sub Section (2) of Section 4 of the aforesaid Act of 1976 got transferred in the service of the State Government. The state as such, cannot deny its liability to pay the salary of the petitioner on untrained scale w.e.f. the date of taking over of the school in question vide notification dated 31st May 1983 as - 8 - contained in Annexure-6. The impunged order dated 20.08.1996 vide Annexure-1 is accordingly quashed. Respondent- State is directed to consider the services of the petitioner as untrained teacher of the State Government with effect from 31.05.1983 and make admissible payments towards the salary and allowances with effect from the date the other similar teachers were paid on the untrained scale of pay, preferably within a period of three months from the date of receipt/production of the certified copy of the order. The writ application is accordingly allowed with the above directions. The Patna High Court The 22nd day of December 2008 Jagdish/N.A.F.R. (Shailesh Kumar Sinha,J)