IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2164 of 2001 NIRMALA KUMARI, wife of Rabindra Ram, presently posted as an Assistant Teacher in Middle School, Kaparpura, Anchal Kanti, District Muzaffarpur … Petitioner Versus 1. THE STATE OF BIHAR 2. The Finance Secretary, Govt. of Bihar, Patna 3. The Secretary cum Commissioner, Primary and Adult Education Department, Govt. of Bihar, New Secretariat, Patna 4. The Director Primary Education, Primary and Adult Education Department, Govt. of Bihar, New Secretariat, Patna 5. The District Superintendent of Education, Muzaffarpur, District Muzaffarpur … Respondents ------- For the petitioner: Mr. S.B.K.Manglam, Adv. For the State : Mr. Udai Shankar Singh, Adv. ------- O R D E R (24.8.2010) Heard Mr. S.B.K.Manglam, counsel for the petitioner and Mr. Udai Shankar Singh, counsel for the State. The prayer of the petitioner in this writ application reads as follows: “(i) For issuance of an appropriate writ in the nature of mandamus, commanding and directing the respondent authorities to calculate the earned leave and credit the same in the earned leave account of the petitioner from the date of her initial appointment as a teacher and allow its adjustment against the period in which the petitioner was absent from her duty on the ground of general strike in the 2 State i.e. from January, 1999 to May, 1999 as per the direction issued by the Finance Department vide its letter no. 7221 dated 2.11.1999 which is presently being allowed to the petitioner only from the date of commencement of her 4th year of service. (ii) For a declaration that after calculating the amount of earned leave, from the date of initial appointment of the petitioner as a teacher, is sufficient to cover the period of absence from duty due to strike, the petitioner is entitled to receive her salary for the entire strike period in between January, 1999 to May, 1999.” Mr. Manglam with reference to the aforementioned relief would submit that the petitioner was appointed on 31.8.1994 and when on account of a general strike of teachers and other employees she had applied for earned leave for regularizing the period of her absence from 7th February, 1999 to 9th May, 1999 in terms of the Government decision dated 2.11.1999, the same was rejected on the ground that she had not sufficient number of earned leave to her credit as on 9.5.1999 to cover the period of her absence between 7.2.1999 to 9.5.1999. Mr. Manglam, therefore, proceeding with such refusal of grant of earned leave to the petitioner would basically 3 offend the provision of Rule 227 of Bihar Service Code, which provides that every Govt. servant in permanent employment be entitled for grant of one eleventh of period in a year spent on duty, has submitted that if the petitioner‟s earned leave in terms of Rule 227 is calculated from 31.8.1994 to 9.5.1999 she will have sufficient number of earned leave so as to regularize her absence from 7.2.1999 to 9.5.1999. As the whole issue depends on the scope of Rule 227 of the Bihar Service Code reads the same is quoted hereinbelow: “227.(1) The earned leave admissible to a Government servant in permanent employ will be- (a) to a government servant in superior service- one eleventh of the period spent on duty; (b) to a government servant in inferior service- one eleventh of the period spent on duty. (2) A Government servant will cease to earn leave when the earned leave due amounts to- (a) 180 days in the case of a Government servant in superior service and (b) 90 days in the case of a Government servant in inferior service: Provided that in the case of a gazetted Government servant employed in 4 India, and who spends his earned leave, elsewhere than in India including Foreign Possessions in India, Pakistan, Ceylon, Nepal, Burma, or Aden, the limit mentioned in clause (a) will be raised to 180 days. The earned leave admissible to a gezetted Government servant after he has accumulated 120 days of such leave should be credited separately upto 60 days. The extra credit should be utilized only when leave is required ex-India and the Government servant has exhausted his normal credit of earned leave.” Attractive thus the aforesaid submission of Mr. Mangalam on the face once it is pierced in the backdrop of Rule 227, the chinks and the fallacy therein gets exposed to the brink, inasmuch as first of all if service history of the petitioner is taken into account as has been produced by the respondents in their counter affidavit annexing the office order dated 31.8.1994 the same itself prescribed that the appointment of the petitioner on the post of matric untrained teacher in the pay scale of Rs. 975-1890 was being made purely by way of temporary appointment and could be terminated without any prior notice. Such temporary appointment of the petitioner was further hedged 5 by another condition of acquiring compulsory teachers training. It, therefore, leaves no scope of doubt that the appointment of the petitioner was purely a temporary appointment about which there is a specific provision in Rule 245 which distinguishes a permanent appointment with temporary appointment and officiating appointment. Once this Court, therefore, would find from the terms and conditions of the petitioner‟s service was in the nature of a purely temporary appointment, there would be no difficulty in holding that she will be governed by Rule 245 which reads as follows: “245. On completion of three years continuous service a temporary or officiating Government servant will be eligible for the leave terms indicated in sub-head I except that he will not be eligible for any leave not due. The provisions relating to earned leave or half pay leave will not have any retrospective effect in such cases i.e. he will begin earning earned lave or half pay leave at the rates mentioned in rules 227 and 232 respectively only from the date on which the fourth year of service commences.” The provision of Rule 245, therefore, would definitely include a person like the 6 petitioner who was initially having a purely temporary appointment and in fact the same was also subject to her acquiring training qualification. The submission of Mr. Manglam that the petitioner‟s case would be covered by Rule 227 if examined in the context of Rule 245 would make it clear that Rule 227 covers the Government servant in permanent employment and the expression „permanent employee‟ has been specifically defined in Rule 222A(vii) which reads as follows: “Government servant in permanent employ means a Government servant who holds substantively a permanent post or who holds a lien on a permanent post or who would hold a lien on a permanent post had the lien not been suspended.” Thus, on a bare reading of the definition of the Government servant in permanent employ it would become clear that a person who was temporarily appointed and that too hedged with condition of undergoing the compulsory teachers training cannot be said to be appointed substantively against a permanent post much less she can be said to have been holding a lien on a permanent post. In this context one has to also take 7 into account the Bihar Prarambhik Vidhyalaya, Niyukti Niyamawali, 1991 to find out the eligibility for the post of appointment of teacher in Primary schools and from them it is absolutely clear that when the amendment was made on 5th of May, 1993 Rule 11 thereof talks of appointment only as a matric trained teacher who are duly qualified having a qualification of matriculation with training. In fact the matric untrained are subject to the following conditions: Þ¼1½ tks mEenhokj izf'kf{kr gS] mUgsa eSfVªd izf'kf{kr osrueku esa fu;qDr fd;k tk;sxk A ¼2½tks mEehnokj vizf”kf{kr gS] mUgsa eSfVªd vizf”kf{kr osrueku ds izkjfEHkd osrueku esa fuEu “krksZ ds lkFk fu;qDr fd;k tk;sxk % ¼d½ izf”k{k.k ds fy, izfrfu;qDr fd;s tkus ij mlesa I;kZIr dkj.k ds Hkkx u ysus ij lsok lekIr dj nh tk;sxh A ¼[k½ izf”k{k.k mijkUr ijh{kk yh tk;sxh mlesa mEenhokj ;fn lQy ugha gksrk gS rks mls ,d ekSdk vkSj fn;k tk;sxk ;fn nwljh ckj Hkh og vuqÙkh.kZ jgrk gS rks mldh lsok lekIr dj nh tk;xh A ¼x½ izf”k{k.k dh vof/k esa le;&le; ij fu/kkZfjr nj ij o`fÙkdk ek= ns; gksxh A izf”k{k.k vof/k ds fy, osru ns; ugha gksxk A ¼?k½ dafMdk ¼[k½ esa fufnZ’V ijh{kk esa mÙkh.kZ gksus ds mijkUr eSfVªd izf”kf{kr osrueku fn;k tk;sxk AÞ In view of above it would be difficult to hold that the petitioner being an untrained matric was entitled to claim herself to be covered by the expression of Government servant and permanent employee so as to be allowed grant of earned leave from the date of entry in her service. As a matter of fact the submission of 8 Mr. Manglam that the petitioner was holding her temporary employment against a permanent post as defined in Rule 37 of the Bihar Service Code has to be only noted for its being rejected because there is no pleading as with regard to constitution of cadre of matric untrained teachers in which the appointment of the petitioner was made. It is well known that a cadre can have a permanent post and temporary post and if only the appointment of the petitioner, who was not even having training qualification and was appointed subject to the condition of her becoming trained, was made against a permanent post, probably she could have claimed to have been appointed temporarily against such permanent post but then there is no such pleading in the writ petition barring that the petitioner presumes that she was appointed against a permanent post and, therefore, was entitled for leave as provided in Rule 227 of the Bihar Service Code. The concept of there being a permanent post and entry of a person in temporary appointment are two different things and therefore, once Rule 227 is to be explained in the context of Rule 245 it has to be necessarily held that a person, who was appointed on 9 substantive basis and was holding lien against the permanent post in the cadre, could alone be entitled for grant of earned leave from the day one her entry in service. In all other cases such Government servant is a temporary Government servant or an officiating Government servant covered by the provision of Rule 245 of the Bihar Service Code wherein it has been envisaged that such leave will be granted from the beginning of 4th year of service. Judged in this background this Court would not find any error in the decision of the authority refusing to grant earned leave to the petitioner for the services rendered by her for the first three years. That being so, this Court finds no merit in this application and it is, accordingly, dismissed. (Mihir Kumar Jha,J.) A.F.R./ Surendra