IN THE HIGH COURT OF JUDICATURE AT PATNA C.W.J.C. No.876 OF 1995 ****** In the matter of an application under Articles 226 and 227 of the Constitution of India. ****** Uma Nath Tiwary Son of Raghu Nath Tiwary, resident of Village, P.O. and P.S. Dumraon, District Buxar. At present working as Assistant Teacher in Dumraon Raj Prayag Sanskrit High School, Dumraon, District Buxar. -------------Petitioner. Versus 1. The State of Bihar. 2. The Commissioner, Education, Bihar, Patna. 3. The Deputy Secretary, Education, Government of Bihar, Patna. 4. The Special Director, Secondary Education, Bihar, Patna. 5. The Chairman, Sanskrit Shiksha Board, Patna. 6. The Secretary, Sanskrit Shiksha Board, Patna. 7. The Head Master Dumraon Raj Prayag Sanskrit High School, Dumraon, District Buxar. -------------Respondents. For The Petitioner : Mr. Tej Bahadur Singh, Sr. Advocate : Mr. Rajiv Ranjan Kr. Pandey, Adv. For the State : Ms. Nutan Kumari Sharma, Adv. AC to G.A.-5. For the Board : Mr. Awadhesh Prasad Sinha, Advocate ------------------ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE SAMARENDRA PRATAP SINGH S. P. Singh, J. In the instant writ application, the petitioner prays for quashing the order contained in Letter no. 13/B-2-020/92 Ma. San. Bi- 1224 dated 16.09.1993, issued by the Deputy Secretary, Education, Government of Bihar, Patna (respondent no.-3), by which the payment of salary to the petitioner was stopped. 2. The main contention of the petitioner is that he is appointed not only within the sanctioned post of Assistant Teacher but would also come within the ‘Manak Mandal’ attached to the Ordinance no. 32/1989. Before we advert to the rival submissions made by the 2 petitioner as well as learned counsel for the Sanskrit Board, it would be appropriate to notice the relevant facts of the case. 3. The facts of the case in short is as follows: One Jagdanand Pandey, the headmaster of Dumraon Raj Prayag, Sanskrit High School, Dumraon, in the District of Buxar (hereinafter referred to as ‘the School’) died on 18.03.1984. The Managing Committee appointed one Sri Baidnath Choubey, a senior teacher, as headmaster of the school in 1957 vide resolution no. 106 dated 24.03.1984. The Bihar Sanskrit Shiksha Board approved the resolution of the Managing committee with a condition that Sri Baidnath Choubey would clear Acharya examination within a period of three years. The Managing Committee of the school temporarily appointed petitioner on 04.12.1985 against the post which became vacant on promotion of Baidnath Choubey to the post of headmaster. Baidnath Choubey cleared the Acharya examination in the year 1988-89 and was confirmed as Headmaster in the school. The petitioner’s appointment was subsequently made regular and also got the approval of Bihar Sanskrit Shiksha Board. 4. The Government vide Ordinance no.32 of 1989 being the Bihar Non-Government Sanskrit Schools took over Management and Control of 429 Sanskrit schools including the petitioner’s school. The petitioner’s name did not figure within the Manak Mandal of the school attached with the Ordinance. The life of Ordinance was extended a few times but it was not renewed after 30.04.1992, consequently the ordinance lapsed on 01.05.1992. The Deputy Secretary, Education, Government of Bihar, Patna vide letter dated 16.09.1993 stopped 3 payment of salary to the petitioner as his name did not figure within Manak Mandal of the school attached with the Ordinance. The petitioner has challenged the impugned letter dated 16.09.1993 in this writ application. 5. The petitioner submits that the Government had sanctioned four posts of Acharya and three posts of graduate teachers in the school. One Baidnath Choubey was appointed against one of the post of graduate teachers in the year 1957. It is also not in dispute that Baidnath Choubey obtained qualification of ‘Acharya’ in 1988-89 only after his promotion as a headmaster of the school. This evidently meant that Baidnath Choubey was working against the post of Graduate teacher. The petitioner’s case is that as he was appointed on the post falling vacant consequent to promotion of Baidnath Choubey as the headmaster, he would be deemed to be working against vacant post of a graduate teacher. 6. Both the State as well as employees, not being satisfied with the judgment in case of Subhash Candra and Ors. Vs. The State of Bihar & Ano. (Supra), filed appeals before the Hon’ble Apex Court being Civil Appeal No.3533-3595/94. The Hon’ble Apex Court vide its order dated 26.04.1996 and 09.01.1995 observed that the employees who were working within the sanctioned post will continue to receive their salary at the rate they were receiving on 17.12.1989, prior to promulgation of the Ordinance. The petitioner submits that he was working within sanctioned post and as such he would be entitled to continuous payment of salary till adjudication of the case by the Hon’ble Apex Court. 4 7. Mr. Awadhesh Prasad Sinha, learned counsel appearing on behalf of Bihar Sanskrit Shiksha Board, submits that the salary of the petitioner has rightly been stopped vide letter dated 16.09.1993, issued by respondent no.3. The ‘Manak Mandal’ attached to the Ordinance , which is annexed as Annexure-4 would show that seven posts of teaching and two posts of non-teaching staffs were only recognized. He submits that the name of the petitioner did not figure within the ‘Manak Mandal’ prescribed for teachers. The ‘Manak Mandal’ provided only for four Acharya Teachers and three Graduate teachers for the school in question. 8. We have heard the learned counsel for the petitioner as well as Bihar Sanskrit Shiksha Board and the State. The petitioner was appointed as Assistant teacher in Dumraon Raj Prayag, Sanskrit High School, Dumraon, in the District of Buxar subsequent to promotion of one Baidnath Choubey as headmaster in view of resolution of the Managing committee of the school dated 18.09.1987. The Bihar Sanskrit Shiksha Board approved the appointment of Baidnath Choubey as headmaster of the school on the condition that he must obtain the qualification of Acharya within three years. Only a person who has passed the Acharya examination was eligible to hold the post of headmaster of a Sanskrit High School. Baidnath Choubey cleared the examination of Acharya in 1988-89 and he was confirmed as headmaster of the school. It is relevant to state here that petitioner was appointed temporarily as an assistant teacher in 1987, as Baidnath Choubey was promoted to the post of headmaster temporarily with a condition that he would obtain the qualification of Acharya. Once Baidnath Choubey obtained the necessary qualification by passing Acharya examination his 5 services stood confirmed and the service of petitioner was also confirmed to the post on 04.06.1989 with approval of Bihar Sanskrit Shiksha Board. The minutes of meeting dated 04.06.1989 is annexed as Annexure-13 to the writ petition. The petitioner regularly received his salary. In the meantime, the Government promulgated Ordinance no.32 of 1989, whereby the Management and Control of 429 schools were taken over. After the promulgation of the Ordinance many complaints were received that some of the schools existed only on papers. In course of enquiry 86 schools were found not fulfilling the requisite criterias mentioned in the Ordinance. The petitioner’s school, however, was found to be fulfilling all the eligibility criteria. The Ordinance too met its ‘water loo’ after 30.4.1992 on 01.05.1992, as it was not renewed leading to filing of many writ applications in this Court, which was disposed of by a common judgment by a Division Bench of this Court delivered in the case of Subhash Chandra and Ors. Vs. State of Bihar & Anr. heard analogous with batch of writ petitions, reported in 1994 (2) P.L.J.R. 359. The Division Bench observed that even after lapse of ordinance the employees would be entitled to payment of salary as they received prior to promulgation of Ordinance. The direction of the Division Bench has been summed in paragraph nos. 105, 106 and 107, which are being reproduced herein below for ready reference: “105. However, there cannot be any doubt whatsoever that despite lapse of the Ordinance by efflux of time, the petitioners would be entitled to their salary which they have been getting prior to promulgation of Ordinance. However, the petitioners are also entitled to get the salary as Government 6 servant till 31.04.1992 i.e. so long Ordinance No.14 of 1990 was valid. As indicated hereinbefore that although in the counter affidavit the State has clearly come out with the statements that the petitioners of the writ application hold the same position as existed prior to promulgation of the Ordinance on 18.12.1989 and despite assertion to the effect that directions have been issued to Sanskrit Shiksha Board for payment of salary to all teachers who satisfy the requirements thereof, we have been informed that no salary has yet been paid to the petitioners. The assertions of the petitioners if correct and we have no reason to disbelieve the same keeping in view the conduct of the State of Bihar in general and this case in particular, least that can be said is that the action of the State is condemnable. 106. There is absolutely no justification for non- release of the salary of the teachers who had been getting the same, in view of the fact that even according to the State of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force. Even so far as teachers for such schools against whom ‘Pratikul’ reports have been submitted would be entitled to salary in the same manner unless schools are derecognized or some other suitable orders in accordance with law are passed. 107. We may reiterate that in terms of the policy decision of the State of Bihar adopted in the year 1983 it undertook the financial liability to pay the salary to all the teaching and non-teaching staff who had been working within the sanctioned strength and staffing pattern of the school, unless it is held that salary paid to any of the teachers was illegal as they have been working beyond the sanctioned strength 7 and/or were not entitled to the salary from the State. But others were certainly entitled thereto. We are not aware as to whether staffing pattern of all such schools have been determined by the State or not keeping in view the student-teacher ratio. Probably such action is now necessary. We, however, express no opinion in this regard. We further make it clear that the Ordinance did not envisage enforcement of the reservation policy of the State. 9. We have noticed above that both the employees as well as State of Bihar filed appeals before the Hon’ble Apex Court giving rise to Civil Appeal No.3533-3595/94. The Hon’ble Apex Court vide its interim order dated 09.01.995 and 26.04.1996 observed that the employees who were working within the sanctioned post will continue to receive their salary at the rate they were receiving on 17.12.1989 prior to promulgation of the Ordinance. It would appear from the pleadings that petitioner was appointed in place of one Baidnath Choubey, who was working since 1957, as assistant teacher consequent to his promotion as headmaster. It is not in dispute that prior to promulgation of Ordinance, the Government had sanctioned four posts of Acharya Teacher and three posts of Graduate teachers in the school. Shri Baidnath Choubey did not have qualification of an Acharya till his promotion to post of Head Master in 1988. As such it would be inferred that he was appointed against one of the three posts of graduate teachers in the school. The petitioner’s appointment was also approved by Bihar Sanskrit Shiksha Board and prior to promulgation of Ordinance he was receiving his salary regularly. As such the natural corollary would be that petitioner was appointed against a vacant post of a graduate teacher falling vacant 8 consequent to promotion of its incumbent Sri Baidnath Choubey to the post of headmaster of the school. Thus, we hold that petitioner Uma Nath Tiwary was appointed against sanctioned post of a graduate teacher prior to issuance of Ordinance. The petitioner’s school before take over was a non-government recognized Sanskrit school. After lapse of Ordinance, the school would revert to its pre-ordinance status of a non- government Sanskrit high school. The Hon’ble Apex Court in his interim order dated 01.04.1995 and 26.04.1996 directed that employees working within the sanctioned strength would continue to receive payment at the rate they were receiving on 17.12.1989, prior to promulgation of the Ordinance. 10. In the result, this writ petition succeeds and we quash the impugned letter dated 16.09.1993, issued by the Deputy Secretary, Education, Government of Bihar, Patna by which payment of salary to the petitioner was stopped. We direct that the respondents would continue to pay salary to the petitioner at the rate he was receiving on 17.12.1989 along with its arrears. The arrears must be paid within a period of six months from today. In case the current salary and arrears is not paid within six months, the petitioner would be entitled to 6 % interest from the date it had become due. (S. P. Singh, J.) I agree S. K. Katriar, J: (S. K. Katriar, J.) Patna High Court Dated 18th April, 2011. Uday/NAFR