CIVIL WRIT JURISDICTION CASE No. 8268 OF 1994 ---------- In the matter of an application under Articles 226 & 227 of the Constitution of India. -------- Parmanand Prasad Yadav, son of Late Anup Lal Pd. Yadav, Incharge Headmaster, Deep Narain Yadav High School, Basua Koyla, P.S. Gogri, District Khagaria …………….. Petitioner Versus 1. The State of Bihar 2. The Director, Secondary Education, Human Resources Development Department, Bihar, Patna ------------- Respondents ------ For The Petitioner : Mr. Tej Bahadur Singh, Sr. Advocate, with M/s Gyan Shankar and Brisketu Sharan Pandey, Advocates For State of Bihar : None -------- P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA THE HON’BLE MR. JUSTICE JYOTI SARAN Navin Sinha, & Jyoti Saran,JJ. Heard learned Counsel for the petitioner. No one appears on behalf of the respondent State. 2. The matter is of the year 1994, admitted for hearing on 1.5.1995. Despite passage of long years no counter affidavit has even been filed. 3. It is the case of the petitioner that he was appointed as an Assistant Teacher in 1968 in Deep Narain Yadav High School, Basua Koyla, P.S. Gogri, District Khagaria in the untrained category holding B.Sc. qualification. He acquired the trained teacher qualification by a Diploma of B.Ed. in 1976. Consequent to the superannuation of the erstwhile Headmaster in 1981, one Sobha Kant Yadav came to be 2 appointed as Acting Headmaster which was reviewed by the respondents on 19.6.1982 acknowledging that the petitioner was the senior most Teacher and appointed him as Incharge Headmaster till further orders. It is the further case of the petitioner that he acquired the necessary experience of ten years under the Service Rules for appointment as Headmaster in 1986 and therefore is entitled to the full salary of Headmaster from 1986. 3. The respondents continued to treat him as the Acting Headmaster giving him monetary benefits of the post of Assistant Teacher. He came to this Court in CWJC No. 11160 of 1993 disposed on 25.1.1994. It noticed his claim of discharge of duties as Acting Headmaster for 11 years as on that date and gave directions for consideration of his claim under Rule 103 of the Bihar Service Code for grant of officiating allowance. This was rejected by the respondents on 6.8.1994 presently impugned. 4. Learned Counsel for the petitioner contends that the issue of his entitlement to officiating allowance by passage of time does not remain very germane to the controversy as the petitioner has now retired on 30.6.2003 from the post of Acting Headmaster which he continued to hold uninterruptedly from 19.6.1982. The respondents satisfied that he fulfilled the eligibility requirement for the post of Headmaster made him Incharge Headmaster based upon seniority after correction satisfied of the injustice done to him by the aforesaid order dated 19.6.1982. The petitioner therefore fulfilled the qualification for appointment on the post of Headmaster. Nonetheless he was appointed in acting capacity till further orders when no further orders for confirmation of his posting as Headmaster came to be passed till his 3 superannuation. Having worked on the post of Headmaster, his services having been utilized in that capacity, he meeting the eligibility for appointment, the respondents cannot deny him full wages of the post of Headmaster from 1986 till superannuation. Reliance is placed on a judgment of the Supreme Court reported in 1998 (5) SCC 87 (Secretary cum Chief Engineer Chandigarh Vrs Hari Om Sharma & Ors). The facts of the case noticed from Para 4, 6 and 8 of the judgment simply are that the respondent therein was appointed on the post of Junior Engineer I in 1990 as a stop-gap arrangement and continued as such for a long period of ten years but was denied salary of that post. The Supreme Court observed that what originated as a stop gap arrangement continued for long years cannot any more be termed as stop gap arrangement. It declined to interfere with the order of the Tribunal directing grant of full salary. 5. In our opinion the petitioner had little choice in the matter. The only option he had was to refuse to discharge duties of Acting Headmaster and relegate himself to the post of Assistant Teacher. Surely the respondents did not expect the petitioner to act to his own prejudice for their lapses. 6. We are satisfied that the petitioner is entitled to full salary of the post of Headmaster from 1986 till his superannuation on 30.6.2003 to be computed after deduction of payments, allowances if any made to him. His last pay drawn has accordingly to be re-fixed on the post of regular Headmaster and his pensionary benefits are also required to be re-fixed accordingly. Let all arrears of salary of the post of Headmaster computed in the aforesaid manner along with fixation of his pensionary benefits and retiral dues be paid to the petitioner within 4 a maximum period of four months from the date of receipt and/or production of a copy of this order before the concerned respondent. 7. The writ application stands allowed. (Navin Sinha,J.) (Jyoti Saran,J.) Patna High Court The 8th July 2010 Snkumar/- (NAFR)