CIVIL WRIT JURISDICTION CASE NO.2956 OF 1996 ******* IN THE MATTER OF AN APPLICATION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. ****** RAMJHARI KUNWAR & ORS----------------------------PETITIONERS. VERSUS THE STATE OF BIHAR & ANR-----------------------RESPONDENTS. ******** FOR THE PETITIONERS: M/S. AKASHDEEP AND SHYAMESHWAR KUMAR SINGH, ADVOCATES FOR THE RESPONDENTS: MR.MANINDRA KUMAR SINGH, G.P.12. ********* P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan,J. The petitioner nos. 1 and 2 (now substituted by their heirs) and petitioner no.3 have challenged the order contained in Annexure-12 vide Memo No. 1870 dated 18.9.1995 wherein their applications for regularization as Assistant Teachers in Jaitpur Middle School Jaitpur, Saran, and Sanjharo Middle School, Deoria, Saran have been rejected. The admitted facts are that the aforesaid two Schools were taken over by the State Government under the Bihar Non-Government Elementary Schools (Taking Over of Management and Control) Ordinance which was enacted in Bihar Act 30 of 1976. It is also admitted that the original petitioner Nos. 1 and 2 and petitioner no.3 were appointed in the - 2 - aforesaid two Schools after 1.1.1971. The original petitioner nos. 1, 2 and petitioner no. 3 were untrained and were getting Rs.205/- in the Matric untrained category. The case of the original petitioner nos. 1 and 2 and petitioner no.3 was duly approved by the District Planning Committee, Saran and the names were forwarded to the District Superintendent of Education on 17.7.1974. The Headmasters of the aforesaid two Schools also made recommendation regarding the case of these persons to the District Superintendent of Education. However, no decision was taken by the District Superintendent of Education with respect to regularization of the services of the aforesaid three persons. The petitioners’ case is that the services of Shailendra Tiwari and Surendra Nath Tripathi were regularized although they were Matric untrained and were appointed after 1.1.1971, on the basis of the order passed by this Court in C.W.J.C. No. 1568 of 1977 disposed of on 20.1.1970. On the basis of the aforesaid order, Sri Tripathi was also given the facility of receiving training. It is also stated that one Maya Raman who was appointed on 2.7.1972 was also regularized and her service was absorbed by the State Government in - 3 - pursuance to a judgment of this Court reported in 1984 P. L. J. R. 328 in the case of Smt. Maya Raman vs. the State of Bihar & Others. Eventually, the original petitioner nos. 1 and 2 and the petitioner no.3 were sent for training on 10.8.1982. In the meantime, the original petitioner no.1 Pashupati Singh and others had filed a writ petition in this Court praying therein that the services of the petitioners should be regularized. The case was disposed of with a liberty to the petitioners to renew their prayer if the petitioners’ services were not regularized. Learned counsel for the petitioners submits that after the training, the petitioners joined in their respective Schools and the Headmasters of the Schools sent their joining to the District Superintendent of Education vide letter dated 8.2.1985 contained in annexure-6. There was some correspondence between the Headmasters of the Schools and the District Superintendent of Education and the Director, Primary Education regarding the facts surrounding the case of the original petitioners no.1 and 2 and the petitioner no.3. Ultimately, the cases of the original petitioner no.1, Pashupati Nath Singh and the petitioner no.3 Anil Kumar Singh were considered by the Director, Primary - 4 - Education in pursuance of a direction given in C.W.J.C. No.3262 of 1987. It appears that the original petitioner no.2 Bhim Nath Singh did not make representation to the authorities. The case of the aforesaid two persons for regularization was rejected on the ground that they were appointed on 12.7.1972 and 10.12.1972/10.12.1973 and because they were untrained. This Court has considered the effect of appointment made after 01.01.1971 in two judgments of this Court reported in 1984 P.L.J.R. 328 in the case of Smt. Maya Raman and in the case of Smt. Pratibha Singh reported in 1988 P. L. J. R. 646. In both the cases, the appointments were made by the District Planning Committee after 1.1.1971 and the question whether an untrained teachers could be absorbed under the Bihar Non-Government Elementary Schools(Taking Over Management and Control) Act,1976 has been considered in the case of Smt. Pratibha Singh (Supra) and this Court has discussed this issue at paragraph nos. 24, 25, 26 and 39 of the said judgment and it has been held that the letter dated 31.12.1982 bearing no. 2501 purportedly issued in exercise of Section 8 of 1976 Act could not have retrospective operation with effect from 1.1.1971 i.e. from the date on which the Act itself came into force. - 5 - In the present case, the Director, Primary Education, Bihar rejected the petitioners’ case for regularization passed on 18.9.1995. The school in which the petitioners were working were taken over about 20 years, and no order could be passed by the Authority regarding their claims for the past 20 years. The order dated 18.09.1995 while rejecting the case of the petitioners refers to a judgment passed in Civil Appeal No. 847 of 1994 (The State of Bihar and Others vs. Laldeo Prasad Yadav). This Court could not trace out the case despite best efforts. The Court granted time to the Counsel for the State on 12.11.2008 to take instructions and find out the whereabouts of the order passed by the Supreme Court/High Court, however, the order has not been produced, although it ought to be in the file dealing with the case of the petitioners. In absence of any order/judgment of the Supreme Court/High Court, the orders of this Court discussed aforesaid holds the field and the petitioners would be entitled for regularization. The regularization would, however, be subject to the verification of the stand of the petitioners that they were actually working in the school in question when the writ application was filed, which would mean that the Director, Primary Education will have to determine this question after examining the - 6 - records of the schools in question and pass appropriate orders within a period of three months from the date of receipt/production of a copy of this order. This writ application is disposed of with the aforesaid observations and directions. PATNA HIGH COURT DATED, the 21st DAY OF JANUARY, 2009. N.A.F.R./U.K. & Anand ( Sheema Ali Khan, J. )