IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7250 of 1998 Chandra Wansh Prasad Singh, son of Late Ram Dahin Singh, resident of Village Narhat, P.S. Bhagwanganj, Dist. Patna, at present working as Assistant Teacher in Sri Baldeo Sanskrit Uchcha Vidyalaya, Masaurhi, Dist. Patna. -------- Petitioner Versus 1. The State of Bihar. 2. Secretary-cum-Commissioner, Secondary, Primary and Adult Education Department, Government of Bihar, New Secretariat, Patna. 3. Special Director (Sanskrit) Secondary Primary and Adult Education Department, New Secretariat, Patna. 4. The Bihar Sanskrit Shiksha Board through its Secondary, East Boring Canal Road, Patna. 5. Chairman, Bihar Sanskrit Shiksha Board, Patna, East Boring Canal Road, Patna. 6. Secretary, Bihar Sanskrit Shiksha Board, East Boring Canal Road, Patna. 7. Additional Secretary to Government, Erstwhile Human Resources Development Department, Govt. of Bihar, New Secretariat, Patna. -------- Respondents ----------- For the Petitioner : Mr. Durganand Jha, Advocate For the Bihar Sanskrit Shiksha Board :- Mr. Bijay Kumar Pandey, Advocate ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (05.08.2011) Mihir Kr. Jha, J. Heard Mr. Durganand Jha, learned counsel for the petitioner and Mr. Bijay Kumar Pandey, learned counsel for the Bihar Sanskrit Shiksha Board. No one appears on behalf of the State. The prayer of the petitioner in this writ application reads as follows:- (i) Issuance of a writ in the nature of certiorari for quashing the order so far it relates to petitioner 2 contained in Memo No. 137/Vi, Ni. dated 20/6/98 passed by the Secondary Primary and Adult Education Department where by and where under the representation of the petitioner, filed in obedience to the order dated 18/3/1996 passed in C.W.J.C. No. 6645/95 for payment of salary w.e.f. 18/12/1989, has been rejected on the ground that at the time of appointment in the year 1971 the petitioner was not trained and as such his appointment as illegal. (ii) Issuance of a writ in the nature of certiorari for quashing the orders contained in letter No.1092 dated 1.10.1992 issued under the signature of the Additional Secretary to Government, Secondary Primary and Adult Education Department, Government of Bihar, Patna so far its relates to Sri Baldeo Sanskrit Uchcha Vidyalaya, Masaurhi, District Patna, by which an order has been issued for payment of salary and other emoluments to the employees of the School including the persons Junior to petitioner and the name of petitioner has not been included in the list of employees in respect of whom an order has been issued for payment of salary and other emoluments. (iii) Issuance of a consequential writ in the nature of Mandamus directing and commanding the respondents to pay 3 the entire arrears of salary and other emoluments from 18/12/1989 onwards including the increased Dearness allowances till date for which the petitioner is legally entitled and also to pay the current salary to petitioner like the other staffs of the school. (iv) Issuance of an appropriate direction/declaration that the impugned order dated 20/6/1998 is wholly illegal and non-sustainable in the eye of law so far it relates to petitioner and denial of salary and allowances to the petitioner amounts to violation of the fundamental rights of the petitioner as envisages under Article 23 of the Constitution of India as work without payment amounts to Begari, because the services of the petitioner has not been terminated till date. (v) Issuance of an appropriate direction that the impugned orders contained in Annexure 1 and 2 are wholly mechanical and without any application of mind in as much as against the evidences produced before the respondent Secretary (Respondent-2) in support of the fact that although in Sanskrit School training was not essential at the time of appointment prior to 1978 yet the petitioner had acquired the degree of short training course in June-July 1973 and Dip-in-Ed. 4 From Bhagalpur University in the year 1974. (vi) Issuance of a direction/declaration that the impugned orders are wholly illegal arbitrary, malafide, whimsical, against the weight of evidences in as much as against the spirit of the order dated 18/3/1996 passed in C.W.J.C. No. 6645/95 and thus these are fit to be quashed and the petitioner is fully entitled to his entire arrears of salary and other emoluments with interest @ 18% P.A. as also suitable compensation for his being harassed at the hands of respondents.” Mr. Jha, in support of the aforementioned relief, would submit that the impugned order passed by the Secretary to the Human Resources Development Department is based on wholly incorrect premises, wherein, he has failed to analyze the history of the Sanskrit Schools. In this context, it has been pointed out by Mr. Jha that the recognition of the services of the petitioner initially as a Clerk in a recognized Sanskrit High School and subsequently on the post of Assistant Teacher, having been given by the competent regulatory body, namely, Bihar Sanskrit Shiksha Parishad on 20.9.1960 and 11.4.1972 respectively, the 5 same could not have been called in question by the Secretary of the Department on a date on which the Ordinance No.32 of 1989 and/or its replacement ordinance did not remain in force. In this context, he would point out that whatever be the Staffing Pattern indicated in the Ordinance No.32 of 1989, which came into existence on 18.12.1989, could have been remained there only during the period when such ordinance had been continued by replacing one after another till 30.4.1992 and, therefore, when the impugned order was passed by the Secretary of the Human Resources Development Department on 20.6.1998, he could not have rejected the case of the petitioner for payment of salary on the basis of Staffing Pattern indicated in the expired Ordinance No.32 of 1989. In this regard, he has also submitted that it is an admitted fact that the petitioner had received payment of salary up to 17.12.1989 on the basis of the approval of his service given by the Bihar Sanskrit Shiksha Parishad and, therefore, when the Division Bench in its judgment in the case of Subhash Chandra & Ors. Vs. The State of Bihar 6 & Anr. reported in 1994(2)PLJR 359 had also laid down the law that such persons whose services were approved by the Board or its predecessor controlling body and were also receiving payment of salary as on 17.12.1989 from the funds of the State through the Board would continue to get the payment of their salary even after the promulgation and/or expiry of the ordinance. Mr. Pandey, learned counsel for the Bihar Sanskrit Shiksha Board, on the other hand, has submitted that while it is true that there was no concept of a trained teacher in a Sanskrit School but, since in the Staffing Pattern laid down by the State Government on 29.6.1980 it had been provided that payment of salary to the approved teachers of the recognized non- governmental Sanskrit school, would be made in the pay scale of Trained Teachers of a government school, the logical outcome would be that the concerned teachers of Sanskrit School also must possess the qualification of successful completion of Teachers Training Course. In the considered opinion of this Court, 7 such a presumptive approach of the Commissioner cannot be approved in the case of a recognized Sanskrit School, which has a long past and is governed by its own rules and regulations. It has to be kept in mind that these Sanskrit Schools are old institutions in which the power of appointment is vested only in its Managing Committee and the Board, being controlling authority for conducting the examinations, has also been empowered to approve the services of such teachers of the recognized Sanskrit Schools both for imparting quality education as also for the purpose of making payment of salary from the fund released by the State Government. It is the State Government which has taken upon itself the laudable object of preserving and supporting the old ancient system of teaching in languages like Sanskrit and Persian. In that view of the matter, whenever the question of entitlement of payment of salary of a teacher of a recognized Sanskrit school would arise, only two things will have to be considered, namely, whether the appointment made by the Managing Committee was approved by 8 the Bihar Sanskrit Shiksha Board and/or its earlier body and whether such appointment was made against the sanctioned post as per prescribed staffing pattern. The concept of sanctioned post in Sanskrit School has also differed from time to time and, therefore, if the petitioner was approved as a teacher of the school way back in the year 1972 by Bihar Sanskrit Shiksha Parishad, it would be difficult for anyone including the Secretary of the Human Resource Development Department to scrutinize the same for taking away such earlier benefit of continuance in service with payment of salary from the funds of the State Government only because of promulgation of Ordinance No.32 of 1989 on 18.12.1989. It must be kept in mind that Ordinance No.32 of 1989 had envisaged to nationalize 429 recognized private Sanskrit Schools but, ultimately after continuing the ordinance alive by successive ordinances in between 18.12.1989 to 30.4.1992, the last ordinance was allowed to lapse on 30.4.1992 and as a result thereof, the effect of the takeover of there 429 Sanskrit schools by the State Government came to an end. In 9 fact, this very issue of the effect of repeal of temporary statute was decided by the Division Bench of this Court in the case of Subhash Chandra (supra) wherein it was held that once the last ordinance had expired on 30.1.1992, there could be no question of continuing the effect of takeover of these schools as Government Schools. True it is that the judgment of the Division Bench of this Court in Subhash Chandra (supra) is subjudice before the Seven Judges Bench of the Apex Court, but then there being no stay of the Division Bench Judgment, all 429 Sanskrit Schools have once again become private Sanskrit School and have been restored with the facilities which were extended to them as a private recognized Sanskrit Schools including that of payment of salary of the teaching and non-teaching employees from the funds of State Government. In that view of the matter, it would be difficult for this Court to approve the reasonings in the impugned order passed by the Secretary of the Human Resources Development Department, who has rejected the claim of 10 payment of salary of the petitioner on the basis of the Staffing Pattern given in the ordinance. It has to be however made clear that if the effect of the ordinance of takeover of 429 recognized Sanskrit school had come to an end on 30.4.1992 due to non- replacement of any further ordinance after that date, so had the Staffing Pattern given under the old Ordinance No.32 and its replacement ordinance. Thus, on or after 1.5.1992, the Staffing Pattern given in the old ordinance had itself become dead letter which could not have been revived for the purpose of adjudicating the case of the petitioner. As with regard to the finding and conclusion arrived by the Secretary of the Department in the impugned order that the petitioner will not be entitled for payment of salary because he had not acquired the qualification of teachers training course it must be held that there is no such requirement under the circulars or the staffing pattern laying down qualification for the post of teachers in Sanskrit School which would 11 require a teachers to have completed teachers training. Course. The submission of Mr. Pandey that since the teachers of Sanskrit School were allowed the pay scale of trained graduate teachers of the government school in the resolution of Education Department dated 29.6.1980, there would be automatic requirement of completion of teachers training course cannot be accepted inasmuch as the staffing pattern itself lay down the qualification of either Acharya or Bachelor's degree for appointment of teachers in Sanskrit School. The Respondents infact cannot now indirectly question the order of approval of service of the petitioner on the post of teacher given way back in 1972 by Bihar Sanskrit Shiksha Parishad in view of the petitioner possessing the required qualification of Bachelor's degree. In that view of the matter, this Court would not find any justification in denying the petitioner for payment of his salary and therefore, this Court, while quashing the impugned order contained in Annexure-1 so far it relates to the petitioner, would direct for 12 payment of salary and emoluments to the petitioner from 18.12.1989 onwards on the same principles on which payment of salary was directed to be made by the division bench in the case of Subhash Chandra (supra). The Board is accordingly directed to ensure that the arrears of salary of the petitioner to the extent it was admissible to him till the date he could have legally continued in service must be paid within a period of six months from the date of receipt/production of a copy of this order on submission of the absentee statement and bills for payment of salary of the petitioner by the competent authority of the school of the petitioner. With the aforementioned observations and direction, this application is allowed. (Mihir Kumar Jha, J.) Patna High Court Dated the 5th August 2011 N.A.F.R./Rsh