CIVIL WRIT JURISDICTION CASE No.4101 OF 1995 ***** In the matter of an application under Articles 226 and 227 of the Constitution of India. ***** Gauri Kant Pathak son of Sri Devikant Pathak, resident of Village- Satlakha Pathaktola, P.S.- Rahika, District- Madhubani at present working as Science Teacher, Sanskrit Uchcha Vidyalaya, Madhubani, P.S. and District- Madhubani. . . . . . . . . . Petitioner. Versus 1. THE STATE OF BIHAR 2. The Secretary-cum-Commissioner, Prathmik Madhyamic and Mass Education Department, Government of Bihar, New Secretariat, Patna. 3. The Additional Secretary, Prathmik Madhyamic and Mass Education Department, Government of Bihar, New Secretariat, Patna. 4. The Special Director (Sanskrit), Prathmik Madhyamic and Mass Education Department, New Secretariat, Patna. 5. Bihar Sanskrit Shiksha Board, through its Chairman, East Boring Canal Road, Patna. 6. The Secretary, Bihar Sanskrit Shiksha Board, East Boring Canal Road, Patna. 7. Sri Binoda Nand Thakur son of not known to petitioner, Assistant Teacher, Sanskrit Uchcha Vidyalaya, Madhubani, P.S. and District- Madhubani (Expunged vide order dated 20.12.2010). . . . . . . Respondents ----------- For The Petitioner : Mr. Durga Nand Jha, Advocate For the Board : Mr. Awadhesh Prasad Sinha, Advocate For the State : Ms. Nutan Kumari Sharma, AC to G.A.5. ***** 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 is aggrieved by order dated 25.03.1994, issued by the Additional Secretary, Department of Primary, Middle and Mass Education, Government of Bihar, Patna addressed to Chairman / Secretary, Bihar Sanskrit Shiksha Board, communicating the decision of the Government cancelling payment order issued by Department’s letter no. 1175, dated 11.11.1992, for the 2 post of science teacher as the same was not sanctioned under MANAK MANDAL attached with the Ordinance no. 32/1989. 2. The facts of the case in short is as follows: The Government vide its order no. 340, dated 20.03.1970, decided to impart Science Education in 34 Sanskrit Schools. The Additional Director (Sanskrit), Bihar Government, vide his letter no. 1258, dated 15.06.1970, addressed to Secretary of non-government recognized Sanskrit High School, communicated Government’s decision dated 20.03.1970 fixing pay scale of Rs. 115-170 for payment to science teachers. The Secretary, Bihar Sanskrit Shiksha Parishad, vide its letter no. 3/601, dated 24.03.1971, informed the Secretary of Sanskrit Uchcha Vidyala, Madhubani (hereinafter referred to as ‘the School’), that the school has been selected as one of the 34 schools for imparting science teaching and due fund would be released for purchase of necessary equipments. A copy of letter dated 24.03.1971 is annexed as Annexure-3 to this application. It is relevant to state here that Bihar Sanskrit Shiksha Board, also known as Bihar Sanskrit Shiksha Parishad, was constituted vide State Government Resolution no. 322, dated 24.01.1961, in terms of the provisions of Kameshwar Singh Darbhanga Sanskrit Act (no. 06 of 1960). The Parishad controlled Sanskrit Education up to Madhyama standard but the examinations were conducted by the University. The legislature enacted Kameshwar Singh Darbhanga University Act 1962, wherein the Sansrkit Shiksha Parishad was defined in the same terms as defined in the earlier Act. The petitioner was selected and appointed as Science Teacher by the Managing Committee of the school after following due procedure including issuance of advertisement etc. The appointment was approved by the then competent authority, namely, 3 Sanskrit Shiksha Parishad, Bihar, vide Memo no.3366 dated 13.10.1973, contained in Annexure-5. The Government from time to time released fund for payment of salary to the science teachers and also for meeting ancillary expenses involved in science education. 3. The Special Director, Secondary Education, vide letter no.1125 dated 13.11.1980, communicated the decision of the Government that the schools where permission for Science Teaching was approved, the post of a Science Teacher would be deemed to have been sanctioned. A copy of letter no. 1125, dated 13.11.1980, communicated by Special Director, Secondary Education, has been annexed as Annexure-7 to this application. The staffing pattern laid down in resolution of the Education Department, bearing letter no. 572, dated 29.06.1981, contained specific provisions for creation of post of Science Teachers. In the year 1989, the Government promulgated Ordinance no. 32/89, being the Bihar Non- Government Sanskrit (taking over of Management and Control) Ordinance, 1989, which came into force with effect from 18.12.1989. 3.1) Under the provisions of said Ordinance, the Management and control of altogether 429 Sanskrit Schools including the petitioner’s school were taken over by the State Government. The services of teaching and non-teaching staff were also to be absorbed as Government employees. The name of the petitioner’s school figured in the list of taken over schools at serial no. 309, attached with the Ordinance. The Ordinance also contained a list showing Manak Mandal (staffing pattern) for each of the 429 schools. In the meantime, the Government received complaints that some of the schools exist only on paper. The Government on 13.08.1990 brought few amendments in the Ordinance to facilitate enquiry into the genuineness of the Schools in view of 4 complaints received. The Government instituted an enquiry and the District Magistrates of the concerned districts were called upon to submit reports whether the schools fulfilled the criteria for being taken over. On enquiry, the petitioner’s school was found to be fulfilling the eligibility criteria laid down in Ordinance no.32 of 1989. However, 86 schools were found not eligible for being taken over. The Additional Secretary, Primary, Secondary and Mass Education (Respondent no.3), vide his order as contained in letter no.1175, dated 11.11.1992, directed Bihar Sanskrit Shiksha Board, Patna, to release the salary and other emoluments to the teaching and non-teaching staff of the petitioner’s school. Subsequently, the salary and other emoluments were released for the year 1990. 3.2) Ordinance no. 32/89 was not renewed after 03.04.1992, and it lapsed on 01.05.1992, leading to spurt of litigations and filing of a large number of writ applications in this Court. The reliefs sought in writ applications ranged from payment of salary at the rate payable to a Government teacher and to a declaration that even after lapse of Ordinance no. 32/1989, the employees would continue to enjoy the status and benefits of employees of a Government School. The main judgment was delivered in case of Subhash Chandra & Ors. Vs. the State of Bihar & Ano., heard analogous with batch of writ applications, reported in 1994(2) P.L.J.R. 359. The Division Bench observed that teachers of ‘Anukul’ schools would continue to be paid salary at the rate they were being paid prior to issuance of Ordinance no. 32 of 1989. The Division Bench further observed that, during the life of the Ordinance from 18.12.1989 till 01.05.1992, the teaching and non-teaching staff would be entitled to salary as permissible to Government Teachers staff. The 5 relevant extracts of judgment of the Division Bench in case of Subhash Chandra and Ors. (Supra), contained in paragraph 106 and 107 are being reproduced herein below for ready reference: “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 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.” 6 4. The petitioner states that prior to his appointment, two teachers, namely, Sri Muktinath Pathak, B.A. Trained, and Sri Ramanad Jha, M.A. trained, were working in the school against posts of Graduate teachers, since 14.08.1958 and 21.11.1960 respectively. The petitioner states that the service of Binodanand Thakur (now dead), appointed on 15.04.1976, was shown within Manak Mandal and was also paid his salary against the third post of graduate teacher though the latter was appointed much after his appointment in 1973. In the alternative, petitioner argued that apart from being a science teacher, he was a graduate as well, and even assuming that the post of science teacher did not figure in Manak Mandal attached with Ordinance no. 32 of 1989, still he should have been reckoned to be working against the 3rd post sanctioned of graduate teacher. 5. The petitioner’s grievance is that the Ordinance inadvertently showed only 7 posts of teaching and 2 posts of non-teaching staff in place of 8 posts of teaching and 2 post of non-teaching staff, as recognized by Government in its staffing pattern dated 29.06.1981. The petitioner’s case is that the Ordinance failed to take into account the post of science teacher, which was sanctioned by the Government in 1970. The petitioner states that both the State and employees went in appeal against judgment and common order dated 03.03.1994, passed in case of Subhash Chandra & Ors. Vs. the State of Bihar & Ano., reported in 1994(2) PLJR 359. The Apex Court, vide order dated 09.01.1995, directed the Government to pay salary to teaching and non-teaching staff of the recognized institutions who are within the sanctioned strength at the old rate prior to promulgation of the Ordinance within two months. The Apex Court vide order dated 26.04.1996 clarified the order dated 7 09.01.1995 to mean that the employees would be paid salary at the rate applicable on 17.12.1989, and shall continue to do so till further orders. The grievance of the petitioner is that though he was working on a sanctioned post of Science Teacher, still payment of his salary has been stopped by the impugned order dated 25.03.1994, passed by Additional Secretary, Primary, Middle and Mass Education, Government of Bihar, Patna. It has been stated that the post of Science teacher was approved by the Government and duly sanctioned in the year 1970-71. 6. Counsel for the State submits that the Manak Mandal of the school provided for only seven teachers, out of which four posts were reserved for Acharya and three posts were reserved for ‘graduate teachers’. The petitioner was not appointed as a graduate teacher but as a science teacher. Thus, his name is not shown in the Manak Mandal attached to Ordinance 32 of 1989, and his salary has rightly been stopped by the impugned order. Furthermore, the post of Science teacher in non- government recognized Sanskrit High Schools has been abolished vide letter no. 966, dated 14.12.1995, issued by the Additional Secretary, Department of Primary, Secondary and Adult Education, Government of Bihar. 7. We have heard the learned counsel for the parties and perused the materials on record. It would appear that the Government sanctioned one post of Science Teacher in each of the selected 34 Sanskrit schools for imparting science education, vide order no. 340 dated 20.03.1970, and letter no. 1258, dated 15.06.1970. The petitioner’s school was selected as one of the Sanskrit Schools for imparting science teaching. The petitioner was selected and appointed as science teacher by the Managing Committee and his appointment was duly approved by 8 Sanskrit Shiksha Parishad, Bihar, vide Memo No.3366 dated 13.10.1973. The staffing pattern as contained in Education Department resolution no. 572, dated 29.06.1981, also provided for a science post in schools selected for imparting science teaching. The Apex Court in Civil Appeal No.3533-3595/94, vide interim orders dated 09.01.1995 and 26.04.1996, observed that teaching and non-teaching staff working within sanctioned posts would be entitled to receive their salary at the rate applicable on 17.12.989. The Ordinance no. 32/1989 did not show post of science teacher within its Manak Mandal. The Ordinance did not long last and it lapsed on 01.05.1992. The natural corollary of lapse of Ordinance would be that the Schools which were taken over, would revert to its original status of non-government recognized Sanskrit High School. In pre- ordinance period, the post of science teacher was duly sanctioned and the staffing pattern contained in Resolution no. 572, dated 29.06.1981, of Education Department also provided for a post of science teacher. After lapse of Ordinance, the petitioner would be deemed to be working against sanctioned post of science teacher. 8. The State had contended that in any view of the matter the posts of science teacher has been abolished since 14.12.1995, and as such even if the petitioner and the likes were appointed against such sanctioned posts, they ceased to exist so, after it’s abolition. The contention of the State can only be noted to be rejected. 9. The Division Bench of this Court vide order dated 08.04.2010 passed in L.P.A. No. 656 of 2010 (The Bihar Sanskrit Shiksha Board Vs. The State of Bihar and Ors.), observed that no effect can be given to letter dated 14.12.1995, abolishing the post of Science Teacher, as it is based on Clause 4 of Ordinance no. 32 of 1989, life of which itself came 9 to an end on 30.04.1992. In a similar case, a Division Bench of this Court in case of the State of Bihar and Ors. Vs. Raj Mangal Roy (L.P.A. No. 715 of 2000), vide judgment dated 22.05.2008, affirmed the order of the learned Single Judge directing payment of salary to the Science Teacher though it was not included in Manak Mandal attached to the Ordinance on the ground that the Government had already sanctioned the post of Science Teacher in the school. The case of the petitioner stands squarely covered both under the interim orders of the Hon’ble Apex Court as well as decisions of the two Division Bench referred above. We thus conclude that as prior to promulgation of Ordinance No. 32 of 1989, the petitioner was working against sanctioned post of Science Teacher in a Recognized Non-Government Sanskrit School, the respondents are directed to continue to pay salary to the petitioner, along with arrears. If the arrears of salary is not paid within six months, the petitioner would be entitled to 6 % interest from the date it had initially become due till the date of payment. The authorities would release necessary grants-in- aid for payment of salary 9. For the reasons stated above, we quash the order dated 25.03.1994, issued by the Additional Secretary, Department of Primary, Middle and Mass Education, Government of Bihar, Patna. 10. The writ petition is allowed. (S. P. Singh, J.) I agree S. K. Katriar, J: (S. K. Katriar, J.) Patna High Court Dated, 18th April, 2011 Uday/NAFR