IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2958 of 1996 MURLIDHAR SINGH, S/O LATE NAURANG SINGH, AT PRESENT POSTED AS ASSISTANT TEACHER HIGH SCHOOL BASDIHA KALA, P.S.-AURANGABAD TOWN, DISTRICT-AURANGABAD. ……………PETITIONER. Versus 1. THE STATE OF BIHAR. 2. DISTRICT EDUCATION OFFICER, AURANGABAD. 3. DIRECTOR, BIHAR SECONDARY EDUCATION BOARD, BUDH MARG, PATNA. ……………RESPONDENTS. ----------- For the Petitioner : Mr.Rajani Ranjan Prasad Singh, Adv. For the State : Mr.Sanjay Kumar-II, GP- 15, Nutan Kumari Sharma, AC to GP-15. ------------- 8 06.05.2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioner has filed this writ application for a direction to the respondents to pay his arrears of salary due from May, 1974 to December, 1981. As per the case of the petitioner he was appointed as Teacher in Basdiha Kala High School in the District of Aurangabad by Managing Committee of the School pursuant to which he joined on 10.12.1973. The School was subsequently taken over by the Government with effect from 21.5.1974. However, the petitioner’s services were not taken over. Therefore, his salary was stopped. He continued in the school and he represented the authorities and by office 2 order of the office of the Deputy Director, Secondary Education dated 30.12.1981, as contained in Annexure-3, his services were approved from the date of issue of the said order. Since then he has been paid his salary. However, the contention of learned counsel for the petitioner is that since petitioner had continued in service in the School even after take over of the School and accepting the same his services were later on approved by the Director, he is entitled to salary of the previous period also from the date of take over of the School itself. In this connection, learned counsel for the petitioner has referred to a judgment of this Court dated 12.12.1996 passed in CWJC No. 10357 of 1995, a copy whereof is annexed as Annexure-7 with the reply to the counter affidavit filed on behalf of the petitioner. After going through the judgment, this Court finds that the facts and issues of the case were identical to the facts and issues of the present case. The issue raised by the petitioner in this writ application was answered in affirmative by this Court in specific terms. 3 Referring to the counter affidavit, learned counsel for the respondents submits that the petitioner’s services were not taken over earlier as he was found working in the School beyond the sanctioned strength and he was untrained also. However, subsequently under some special reasons his services were approved by the Director by his order dated 30.12.1981. If the petitioner was not appointed within sanctioned strength and was not qualified to hold the post of teacher at the time of consideration of his case by the Screening Committee, the respondents were well within their powers to cancel/terminate his appointment. That the respondents did not do. On the other hand, Annexure-2, an office order of the of the office of the Sub-Divisional Education Officer dated 8th January, 1975 shows that the joining of the petitioner in the School on 10.12.1973 stood accepted by the authorities. It is mentioned that his appointment was within the sanctioned strength and approval of the Department had also been obtained in the matter. Thus the appointment of the petitioner in the School by the Managing Committee stands accepted 4 by the respondents. As claimed by the petitioner he continued in service in the School even after take over of the school, raising his claim for payment of salary before different authorities. Finally, by order of the Director dated 30.12.1981, as contained in Annexure-3, his services were approved. The order does not show that the same was issued upon some special consideration or under any peculiar facts and circumstances. Therefore, the stand of the respondents in the counter affidavit and grounds for rejection of the representation of the petitioner by the Director in his order, as contained in Annexure-6, are non est. In the above referred judgment of this Court relied upon by learned counsel for the petitioner, it has been very clearly explained that approval of service amounts to approval of service of a person who is already in service. Had the petitioner not been in the school there was no question of approval of his services. The fact that the services of the petitioner have been approved by the Director clearly shows that the petitioner was working in the School from before 5 and continued as such even after take over of the School. In the circumstances, following the ratio laid down by this Court in the above referred judgment, this Court holds that the petitioner is entitled for his salary for the period May, 1974 to December, 1981. It is clear from Annexure-3, the order of the Director, that the petitioner was untrained Graduate and he was sanctioned the pay scale of untrained Graduate by the said order of approvals of his service. Therefore, the objection of the respondents that the petitioner was untrained and, therefore, his services could not be taken over also gets falsified. Hence, the petitioner will be entitled to scale of untrained Graduate for the said period also. It is not disputed that after December, 1981 he has been paid his salary and he has continued in service. In the circumstances, this writ application is allowed. The respondents are directed to pay arrears of salary of the petitioner of the period May, 1974 to December, 1981 in the scale as held admissible to him in the said order of the Director, as contained in 6 Annexure-3. The arrears shall be paid to the petitioner preferably within a period of three months from the date of receipt/production of a copy of this order. The order, as contained in Annexure-6, by which the representation of the petitioner was rejected, is, in the circumstances, quashed. Arvind/ (J. N. Singh, J.)