IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC NO.14515 OF 2006 GANESH PRASAD SINGH, S/O LATE JALO SINGH, R/O VILLAGE MAHADEO SIMARIA, P.S SIKANDRA, DISTRICT JAMUI. …………………PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE SECRETARY, DEPARTMENT OF SECONDARY EDUCATION, BIHAR, PATNA. 2.DIRECTOR, DEPARTMENT OF SECONDARY EDUCATION, BIHAR, PATNA. 3.DISTRICT EDUCATION OFFICER, MUNGER. 4.ACCOUNTANT GENERAL, BIHAR, PATNA. ………………………RESPONDENTS. ----------- For the Petitioner : Mr. Umeshwar Pd. Singh, Advocate For the State : S.C.-22 ----------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA (ORDER) (24.08.2011) Mihir Kumar Jha, J. Heard counsel for the parties. The petitioner in this writ application has prayed for the following relief: “(i)For direction to the respondent authorities particularly respondent no. 2 i.e. Director Secondary Education to treat the petitioner to have continued in the service of D.M. High School, Sheikhpura even after assuming the assignment of the Headmaster of Tripurari Prasad Singh, High School, Pirhinda, Jamui on 30.01.79 untill 05.06.80 i.e. when he was formally relieved from D.M High School, Sheikhpura as he, prior to that, continued to remain in the employment of D.M High School, Sheikhpura and managed the affairs of the Pirhinda School also. (ii)For quashing the order as contained letter no. 2510 dated 09.11.2004 issued by and under the signature of Director, Secondary addressed to the Accountant General, Bihar whereby the petitioner’s service has been treated from 06.06.1980. (iii)For direction to the respondent authorities to revise the pension and payment of other retrial benefits accordingly.” 2 It is the case of the petitioner that he had started his career as Assistant Teacher in D.M High School, Sheikhpura (hereinafter referred to as the Sheikhpura School) on 08.09.1965, on the post of Assistant Teacher and had continued on the said post till 05.06.1980. The Sheikhpura School being a recognized school by the Bihar Secondary Education Board, the petitioner has claimed that when later on he became absent from duty from the Sheikhpura School from 29.01.1979 to 05.06.1980 on account of his joining and working as Headmaster in Tripurari Prasad Singh High School, Pirhinda, Jamui (hereinafter referred to as the Pirhinda School) the said period of January 1979 to June 1980 should have been taken into account for computing the length of his service for giving the petitioner the benefit of past services rendered by him from 08.09.1965 and till the date of his retirement being 31.01.2001. In other words, this writ petition aims to extend the qualifying period of service of the petitioner for the grant of his pension and other retirement benefits, inasmuch as, the State Government has already paid the retirement benefits of the petitioner by taking into account the length of service of the petitioner in Pirhinda School from the date of its recognition i.e. 5.6.1980 but then the petitioner has a grievance that his length 3 services of the earlier Sheikhpura School, a recognised school for the period of 8.9.1965 to 4.6.1980 should also have been taken into account which could have given him the benefit of further 15 years of more qualifying service leading to enhanced his total admissible amount of monthly pension as also consolidated amount of his other retirement benefits. To that extent, the petitioner has also assailed the order passed by the Director of Secondary Education as communicated to the Accountant General Bihar vide his letter dated 09.11.2004, wherein, claim of the petitioner for counting his previous period of services of Sheikhpura School has been considered and rejected holding that the petitioner would be entitled for the reckoning of his services only from 05.06.1980, which reads as follows:- ^^fcgkj ek/;fed f'k{kk dk;kZy;] iVuk izs"kd] funs'kd Aek0 f'k0A fcgkj] iVukA lsok esa] egkys[kkdkj] fcgkj] iVukA fo"k;& Jh x.ks'k izlkn flag] lsok fuo`r iz/kkuk/;kid jke/kkjh flag mPp fo|ky;] erklh] y[khljk; ds lsok fujZrjrk iznku djus ds laca/k esaA egk'k;] mi;qZDr fo"k;d vkids i=kad th-bZ-&11&99&xxx&12&565 fnukad 19-8-04 tks Jh x.ks'k izlkn flag] lsok fuo`r iz/kkuk/;kid] jke/kkjh flag mPp fo|ky;] erklh] y[khljk; ds lsok fujZrjrk ds laca/k esa gS ds izlax esa funs'kkuqlkj vafdr djuk gS fd Jh flag 8-9- 65 dks fu;qDr gksdj Mh-,u-mPp fo|ky;] 'ks[kiqjk esa dk;Zjr FksA iqu% 30-1-79 dks vLFkk;h :i ls iz/kkuk/;kid ds in ij Vh0ih0,l0 mPp fo|ky; fijfg.Mk esa fu;qDr gq,A mPp fo|ky;] fijfg.Mk dh izLohd`fr fnukad 12-4-80 dks feyus ds ckn Jh flag fnukad 6-6-80 dks LFkk;h :i ls ;ksxnku fd;sA Li"V gS fd Jh flag dks iz/kkuk/;kid ds :i esa izLohd`r mPp fo|ky;] fijfg.Mk ls gqbZ rFkk bUgksaus iwoZ ds fo|ky; dks NksM+dj ;gka ;ksxnku fd;kA budh 4 izLohd`fr bl fo|ky; esa 30-1-79 ls dk;Zjr jgus ds vk/kkj ij nh xbZ gSA foHkkxh; ifji= la0&636 fnukad 18-7-92 dh dafMdk2¼x½ esa vafdr gS fd izLohd`r ek/;fed fo|ky; esa dk;Zjr f'k{kd vius lsok dky ds ckn fdlh vizLohd`r xSj ljdkjh ek/;fed fo|ky; easa ;ksxnku nsrs gS ftldh izLohd`fr muds ;ksxnku ds ckn feyrh gS rks ,sls ekeys esa lsok esa gqbZ VwV {kkUr ugha dh tk;sxh vkSj mlds iwoZ lsok vof/k isa'ku iznk;h ugha gksxhA bl izko/kku ls Li"V gS fd mudh lsok 6-6-80 ls gh eku ysuk fu;ekuqdqy gksxkA vr% mijksDr fLFkfr esa Jh flag dh lsok dh ekU;rk fnukad 6-6-80 ls nsuk fu;ekuqdqy gSA fo'oklHkktu g0@& funs'kd Aek0 f'k0A fcgkj] iVukA** Mr. Umeshwar Prasad Singh, learned Counsel for the petitioner initially had taken a stand that there could be no difficulty in clubbing the period of service of the petitioner from 29.01.1979 to 05.06.1980 with his earlier service in Sheikhpura School w.e.f. 8.9.1965 because the petitioner was admittedly working in Sheikhpura School a recognized school and therefore, even if he had subsequently joined and rendered his services in the unrecognized Pirhinda School from 29.01.1979 to 05.06.1980 by remaining on leave from Sheikhpura School, the said period cannot be altogether ignored by the respondents because Pirhinda School was ultimately recognized w.e.f. 5.6.1980 as the petitioner being its Headmaster. This Court having noted the aforementioned submission, on an earlier occasion, had passed the following order dated 06.07.2011:- "Having heard Mr. Umeshwar Prasad Singh, learned counsel for the petitioner and counsel for the State, this Court would find that the plea of the petitioner as against 5 the impugned order rejecting claim of the petitioner of taging up his previous service from 8.9.1965 to 5.6.1980 on the basis of his functioning as a Teacher in a recognized high school, D.M. High School, Sheikhpura, can be sustained only if the petitioner can demonstrate that he was allowed by the Madhyamik Shiksha Board to work in two places and to that extent, when the recognition of High School, Pirhinda was given with effect from 6.6.1980, the petitioner was allowed by the Board to continue in both the schools i.e. D.M. High School, Sheikhpura and also as Acting Headmaster of the High School, Pirhinda. Learned Counsel for the petitioner seeks time to file documents to establish these aspects by producing the order of the establishment of the Pirhinda School as also the order of recognition of the Pirhinda School." In compliance of the said order, the petitioner has produced a copy of the order dated 12.04.1980 granting permanent recognition to Pirhinda School, wherein, the name of the petitioner was shown at serial no. 1 as the Headmaster of the School. On the basis of this document, an impression was sought to be created by the petitioner that he became employee of the Pirhinda School w.e.f., 12.04.1980 and therefore, his earlier services in Sheikhpura School till 11.4.1980 by itself will be deemed to be sufficient to allow him to count his past benefit of services in the recognized Sheikhpura School for its being taken into account for computing the total length of service for fixation and payment of pension and other retirement benefits. 6 As this Court has found that the permanent order of recognition of the Pirhinda School was issued by the Bihar Secondary Education Board, Patna on 12.04.1980, this Court by its order dated 01.08.2011 called for the original file granting permanent recognition to the Pirhinda School and pursuant thereto the File No. 156/78 has been produced by the learned counsel for the State in the Court today. From the said file which was opened for the first time on 11.04.1978, it would become clear that when an application was filed by the founder of Pirhanda School for seeking permission of establishment of the school, the same was forwarded by the District Education Officer, Munger to the Secretary of Secondary Education Board, and the Board by its letter dated 19.04.1978 had called for an inspection report as with regard to the viability and existence of such proposed Pirhinda School. Pursuant thereto the District Education Officer, Munger had got an inquiry conducted and in such Inquiry Report submitted by the Sub-divisional Education Officer by letter no. 3529 dated 25.10.1978 and letter no. 368 dated 13.02.1979 he had indicated that the said School has already been established in the name of Sri Tripurari Prasad Singh. The District Education Officer, Munger accordingly by its letter dated 17.03.1979 in answer 7 to the queries of the Board had submitted its documents including the required undertaking of the Secretary to the School. Though the said inspection report and the recommendation are missing from the file in question but then the undertaking given by the Secretary to the School dated 20.01.1979 at Page-8/C goes to show that on 20.01.1979, the School was already functional. It is in this background, that one has to understand the order of the Secondary Education Board dated 30.07.1979 which for the first time had granted the permission for establishment of the School and from the same, it becomes clear that this School had its full fledged teaching strength of employees headed by its Headmaster, and such Headmaster was none else but the petitioner himself. It was infact in the pen and signature of the petitioner, in the prescribed proforma of the inspection report of the Special Board, that he had himself declared himself to be the working Headmaster of the Pirhinda School w.e.f. 02.12.1978. It therefore, becomes clear that the petitioner was working as fulltime Headmaster of the Pirhinda School from 02.12.1978 and therefore all his plea of his being on leave from Sheikhpura School was never brought to the notice of the competent authority including the District Education Officer and the 8 Secretary to the Bihar Board of Secondary Education in course of or while seeking permission for establishment/recognition of the School. Once the petitioner’s continuation in Pirhinda School as its Headmaster w.e.f. 02.12.1978, is not at all in doubt his plea in the writ petition claiming that he had been a regular teacher of the Sheikhpura School up to 05.06.1980 or that he had actually joined and continued in the Pirhinda School only on 29.01.1979, after taking leave from time to time from the private Managing Committee of the Sheikhpura School cannot be accepted specially when his working as Headmaster of Pirhinda School w.e.f. 2.12.1978 in his own handwriting containing his signature on the prescribed proforma in capacity of Headmaster along with Umakant Singh as the Secretary of the school at page 24/c of the file read with the page 87/c of the file is well preserved in the file. The said file with the aforesaid documents was also made available to the learned counsel for the petitioner but he could after no other explanation save and except that in private school the date of appointment disclosed usually does not have binding effect. Such a plea of the learned counsel for the petitioner would adversely affect on the credibility of the institution itself namely Pirhinda School and would mean that it had sought recognition from the 9 State Government by declaring that it had the petitioner as a permanent Headmaster without actually reporting this fact to the authorities of the inspection team or the District Education Officer or the Director of Secondary Education that the petitioner was such a Headmaster who at the same time was working in two places i.e. as a teacher in Sheikhpura School and also as a Headmaster in Pirhinda School. It is therefore, very difficult for this Court to accept the case of the petitioner that he had continued in two places in the same period, as a teacher in Sheikhpura School and also as a Headmaster in Pirhanda School. The repeated submission of Mr. Singh learned counsel for the petitioner that it was possible for the petitioner to do so because both the schools were private Schools also cannot be accepted because the Sheikhpura School was a recognized School and if its any teacher including the petitioner had already joined on the post of Headmaster in another unrecognised school at Pirhinda on 2.12.1978, its Managing Committee was required to inform this fact to the District Education Officer, Munger as also to the Board of Secondary Education for making it known to them that the vacancy on the post of teacher by leave had occurred in Sheikhpura School. 10 Apart from that when this Court would find that even the inspection report of the special Board pursuant to the order of permission of Establishment dated 30.7.1979 had led to the permanent recognition of the Pirhinda School on 12.04.1980 on a clear impression created by the petitioner himself that he was the regular Headmaster since, 02.12.1978 of the Pirhinda School, it would not be in a position to accept the submission of Mr. Singh that the petitioner was working in two Schools simultaneously for a period of almost one and a half year, i.e. 2.12.1978 to 12.4.1980. It is amidst these facts that this Court has to examine the correctness of the impugned order dated 9.11.2004, wherein, the Director of Secondary Education has rejected the claim of the petitioner for simultaneous continuance in service both at Sheikhpura School and Pirhinda School. The reliance placed by the Director of Secondary Education in this regard in the impugned order to the following portion of Circular no. 636 dated 18.07.1992 (Annexure-5/1 to the writ petition):- ^^¼x½ izLohd`r ek/;fed fo|ky; esa dk;Zjr f”k{kd vius lsokdky esa ;fn fdlh vizLohd`r xSj&ljdkjh ek/;fed fo|ky; esa ;ksxnku nsrs gSa] ftldh izLohd`fr muds ;ksxnku nsus ds ckn feyrh gS] rks ,sls ekeys esa lsok esa gqbZ VwV {kkUr ugha dh tk;sxh vkSj mlds iwoZ dh lsok vof/k isa”ku iznk;h ugha gksxh A** is quite apt and inappropriate, inasmuch as, the aforesaid circular itself clearly provides that 11 if a working teacher in recognized School subsequently joins in an unrecognized School and such an unrecognized School gets its recognition at a subsequent date (after joining of such person) there would be no question of condonation of break in service for the purposes of making payment of salary, pension and other retirement benefits by computing the earlier service rendered in recognised school. In the present case, it is an admitted fact that the petitioner was a teacher of a recognized Sheikhpura school up to 1.12.1978 specially inasmuch as there is a documentary proof with the signature of the petitioner, declaring himself to be the regular Headmaster of Pirhinda School since, 2.12.1978. Thus even if his case for sake of argument is accepted that he was giving services simultaneously in both the Schools, he would not be entitled for condonation of break in service in view of the circular of the State Government dated 18.7.1992 as quoted above because Pirhinda School had already been given approval for establishment on 30.7.1979 with the petitioner again being shown there as its regular Headmaster. It is therefore, clear that the break in service of the petitioner from Sheikhpura School will be from 2.12.1978 the date, he had himself shown in the inspection report in his own 12 handwriting and signature to have joined in Pirhinda School i.e. 2.12.1978. Once this aspect becomes clear it would not be difficult to hold that the petitioner will be deemed to be the teacher of the recognized Sheikhpura School only up to 1.12.1978 and from 2.12.1978, he will be the Headmaster of unrecognized Pirhinda School till it got its recognition on 12.04.1980. Thus for a period of one and a half year there would be a break in service which was sufficient to deny the petitioner the benefit of his past services of recognized Sheikhpura School. The provision for condonation of break in service was made applicable by the State Government in the Case of teachers/Headmaster of taken over schools where both Schools were recognized Schools at the time of leaving of the first recognised school and joining the service of the other recognised school. To that extent the petitioner has also not assailed the Government decision contained in Circular dated 18.07.1992 (Annexure-5/1) relevant portion which reads as follows:- ^^fcgkj ljdkj] ekuo lalk/kku fodkl foHkkx A lays[k Kkikad 636 fnukad 18 tqykbZ] 1992- fo’k;&jktdh;d`r ek/;fed fo|ky; ds f”k{kdksa@f”k{kdsŸkj deZpkfj;ksa dks isa”ku dh Lohd`fr esa izpfyr dqizFkk ds ifjgkj gsrq vko”;d funs”kA jkT; ds ekU;rkizkIr ek/;fed fo|ky;ksa dk fnukad 2- 10-1980 ls ljdkjhdj.k fd;s tkus ds QyLo:i buesa dk;Zjr f”k{kdksa f”k{kdsŸkj deZpkfj;ksa dks lkekU; ljdkjh lsodksa dh Hkk¡fr vU; lqfo/kkvksa ds lkFk&gh&lkFk isa”ku ,oa minku dh lqfo/kk Hkh nh xbZ vkSj bldh Lohd`fr gsrq izfdz;k ,oa fu;e Hkh cuk;s x;s A 13 blds ckotwn egkys[kkdkj] fcgkj us bu deZpkfj;ksa dh isa”ku ,oa e`R;q&lg&fuo`fŸk minku dh Lohd`fr esa gks jgh vfu;ferrk rFkk mlds pyrs jktdh;&dks’k ds nq#i;ksx dh lwpuk nh gS vkSj blds lq/kkj gsrq egkys[kkdkj ls lq>ko Hkh izkIr gq, gSa A mDr lwpuk ,oa lq>koksa ij lE;d~&:is.k fopkjksijkUr isa”ku dh Lohd`fr esa fu;a=.k ykus ,oa foŸkh; vuq”kklu cjrus gsrq ijoŸkhZ dafMdkavksa esa vko”;d funs”k fu:fir fd;s tk jgs gSa A 1- ------------------------------------------------------------------------------------------------------------- 2- foRr foHkkxh; ladYi la[;k&581@fo0] fnukad 15-1-1982 dk la'kks/ku& ljdkjh deZpkfj;ksa dh lsok esa VwV dh {kkfUr dh 'krZ ,oa izfdz;k fcgkj isa'ku fu;ekoyh ds fu;e 105 esa fufgr gS] ftudh foRr foHkkxh; ladYi la[;k 3014@fo0] fnukad 31-7-1980 dks dafMdk&4 ds izko/kkuksa ds tfj, mnkj cuk;k x;k gSaA rRi'pkr jktdh;d`r ek/;fed fo|ky; ds f'k{kd@f'k{kdsRrj deZpkfj;ksa ds izlax esa lsok esa gqbZ VwV dh {kkUr djus ds izko/kku foRr foHkkxh; ladYi la[;k 581 fo0] fnukad 15-1-1982 esa lekfo"V fd;s x;s gS] ftuds vuqlkj ^LosPN;k in&R;kx* djus ds pyrs gqbZ VwV dh foyksfir dj fn;k x;k gSA bl izko/kku dk nq:i;ksx fd;k tk jgk gSA vr% ljdkj }kjk foRr foHkkxh; ladYi la[;k 581 fo0] fnukad 15-1-1982 dk vkaf'kd la'kks/ku djrs gq, ;g fu.kZ; fy;k x;k gS fd ;fn fdlh f'k{kd@f'k{kdsRrj deZpkjh dh lsok ls ^LosPN;k R;kx i=* nsus ds pyrs VwV gks xbZ gks] rks mldk {kkfUr lEcfU/kr ekeys dh lHkh ifjfLFkfr;ksa ij lokZxh.k :i ls fopkj djus ds ckn fuEukafdr izfdz;k ds vuqlkj dh tk;sxhA ¼d½ izR;sd ekeys esa VwV dh {kkfUr dk jkT;kns'k foRr foHkkx ds vukSipkfjd ijke'kZ ls egkys[kkdkj dks izsf"kr fd;k tk;A ¼[k½ lEiw.kZ lsok esa vk;h ,d VwV vFkok ,d ls vf/kd VwV dh dqy vof/k fdlh Hkh n'kk esa nks o"kksZa ls vf/kd dh ugha gksA ¼x½ izLohd`r ek/;fed fo|ky; esa dk;Zjr f”k{kd vius lsokdky esa ;fn fdlh vizLohd`r xSj&ljdkjh ek/;fed fo|ky; esa ;ksxnku nsrs gSa] ftldh izLohd`fr muds ;ksxnku nsus ds ckn feyrh gS] rks ,sls ekeys esa lsok esa gqbZ VwV {kkUr ugha dh tk;sxh vkSj mlds iwoZ dh lsok vof/k isa”ku iznk;h ugha gksxh A ¼?k½ izLohd`r e/; fo|ky; ds f'k{kd ;fn izLohd`r ek/;fed fo|ky; esa ogka miyC/k lqfo/kkvksa dks n`f"ViFk es j[krs gq, ;ksxnku nsrs gSa] rks ,sls ekeys esa e/; fo|ky; ds v/khu muds }kjk dh xbZ lsok isa'ku ds fy, ifjxf.kr dh tk;sxh] ;fn lEcn~/k f'k{kd ljdkjh fu;eksa dk vuqikyu djrs gq, e/; fo|ky; ls fojfer gksdj izLohd`r ek/;fed fo|ky; esa ;ksxnku fd;s gksaA ¼M-½ VwV dh vof/k dh x.kuk isa'ku iznk;h lsok ds :i es ugha dh tk;sxh** (underlining for emphasis) The aforementioned underlined provisions made by the State Government in its aforesaid circular dated 18.7.1992 would apply with full force in the case of the petitioner as it is clear that the petitioner was only an a teacher of the recognized School on 1.12.1978 and had joined unrecognized 14 School as Headmaster on 2.12.1978, whereafter he had its remained Headmaster till 11.04.1980, when the recognition was given to the Pirhinda School by the State Government on 12.4.1980. In the light of the aforesaid discussion there would be no difficulty in holding that the claim of the petitioner counting his earlier service from 8.9.1965 to 1.12.1980 is factually incorrect and legally impermissible in view of the Government decision dated 18.7.1992 read with Rule 101 Bihar Pension Rules. There seems to be an error in the impugned order passed by the Director, Secondary Education who has incorrectly recorded the date of joining of the petitioner as a temporary Headmaster on 30.1.1979 and as a permanent Headmaster on 6.6.1980 inasmuch as the documents well preserved in the file presented before this Court relating to grant of permission for opening of Pirhinda School and its recognition clearly go to show 2.12.1978 as the date of appointment and functioning as its Headmaster wherein not only the name and detail of the petitioner but all other teaching and non-teaching staff has been separately recorded. In their presence the subsequent materials created after recognition and take over of the Pirhinda school can have no evidentiary value. None the less the 15 conclusion arrived in the impugned order either with regard to their being a break of service of the petitioner or his being a teacher of recognized Sheikhpura School and joining as a headmaster of an unrecognized high school and thus covered by Clause 2(ga) of the provision of government circular dated 18.7.92 is absolutely correct. Thus in the given facts the impugned order would require no interference of this court and petitioner would not be entitled for the benefit of counting past service for the period 8.9.1965 to 5.6.1980 towards qualifying service for payment of his pension and other retirement benefits. That being so, this application is wholly misconceived and is, accordingly, dismissed. Patna High Court Dated the 24th August 2011 A.F.R,/Ranjan (Mihir Kumar Jha, J.)