IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.517 of 2010 THE BIHAR SANSKRIT SIKSHA BOARD, THROUGH ITS SECRETARY, SHREE NIWAS CHANDRA TIWARY S/O SRI BHARAT PRASAD TIWARY R/O VILL SALEMPUR, P.S.AMARPUR, DISTT-BANKA … Respondent-Appellant Versus 1. THE STATE OF BIHAR THROUGH, THE SECRETARY, SECONDARY PRIMARY AND ADULT EDUCATION DEPARTMENT GOVT.OF BIHAR, PATNA 2. THE SPECIAL DIRECTOR, (SECONDARY EDUCATION -SANSKRIT) GOVT. OF BIHAR, PATNA 3. HARENDRA KUMAR PANDEY S/O SHRI RAMASHISH PANDEY R/O VILL BANPURA, P.S.RASULPUR, DISTT- SARAN 4. BIMAL KUMAR SINGH S/O LATE SURUJ SINGH R/O VILL MAHUI, P.S. MANJHI, DISTT-SARAN 5. SHAILESH KUMAR SINGH S/O BINDA SINGH R/O VILL BAJRAHIYAN, P.S.MAHARAJGANJ, DISTT-SIWAN … Petitioners-Respondents. ----------- For the Appellant: Mr. Awadhesh Pd.Sinha, Adv. For the State : Mr. P.Tekriwal, G.A.I. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (18.3.2010) As per Mihir Kumar Jha,J. I.A.No. 2646/2010 1. Having heard learned counsel for the appellant as also taking into consideration the facts and circumstances mentioned herein, the delay of 23 days in filing of this appeal is hereby condoned. 2. I.A.No. 2646/2010 is accordingly allowed. 2 L.P.A.No. 517/2010 3. Since we have condoned the delay we are also inclined to take up the appeal for its disposal at the admission stage itself. 4. In this intra-Court appeal the appellant, the Bihar Sanskrit Siksha Board (hereinafter referred to as ‘the Board’) has assailed the order dated 29.4.2009 passed by the learned Single Judge in C.W.J.C.No. 12517/2005 whereby and whereunder the writ application of respondents no. 3, 4, 5- writ petitioners as with regard to payment of salary has been allowed with a direction to the appellant Board to make payment of such arrear and current salary. 5. Mr. Awadhesh Prasad Sinha, learned counsel appearing for the appellant Board has submitted that such direction of the learned Single Judge for payment of salary to the respondents- writ petitioners was patently unsustainable, inasmuch as they were working on the additional post of primary unit of Mahendra Nath Sanskrit Prathmik Sah Madhyamik Vidyalaya, Rasulpur, Saran whose primary unit was not admissible after Ordinance No.32 of 1989 dated 3 18.12.1989. In this context reliance has been placed by the learned counsel for the appellant on Ordinance No.21 of 1990 showing that when 429 Sanskrit schools were taken over as the Government school by Ordinance No. 32 of 1989, only 7 sanctioned post of teachers were treated to be the existing strength of school and since the three respondents- writ petitioners, two of them working in primary unit and one against the post of Science teacher were not covered by the post of specified in the ordinance, they were not entitled for payment of salary. 6. In the opinion of this Court the reliance placed on the staffing pattern shown in the ordinance No.32 of 1989 or its subsequent replacing ordinance No.21 of 1990 will have no meaning in the eye of law, inasmuch as the life of this ordinance by itself come to an end on 30.4.1990. It has to be kept in mind that whereas Mahendra Nath Sanskrit Prathmik Sah Madhyamik Vidyalaya, Rasulpur was established in the year 1957 and received its approval by way of recognition from the Bihar Sanskrit Samiti with effect from 1.4.1959, the school being classified as Prathmik Sah Madhyamik Vidyalaya in the year 1976 was sought 4 to be taken over by Ordinance No. 32 of 1989 along with 428 other recognized Sanskrit schools. These 429 recognized Sanskrit School, however, after remaining as Government Sanskrit School in view of Ordinance No. 32 of 1989 dated 18th December, 1989 and replaced Ordinance upto 30.4.1992 had lapsed and the school in question had been once again reverted to its old position of a recognized private Sanskrit school in whose payment of salary was being made as per policy of the State Government from its own funds through Bihar Sanskrit Shiksha Board. Thus, if during continuance of the ordinance between 18.12.1989 to 30.4.1992 the number of posts were sought to be slashed by the ordinance such staffing pattern in the ordinance had itself lost its life on or after 30.4.1992 and withholding payment of salary on the basis of such staffing pattern of the ordinance was wholly impermissible as was held by a Division Bench judgment of this Court in the case of Subhash Chandra & ors. vs. the State of Bihar & ors., reported in 1994(2) PLJR 359, wherein it was held that: “105. However, there cannot be any doubt whatsoever that despite lapse of the Ordinance by efflux of time, the petitioners would be entitled to 5 their salary which they have been getting prior to promulgation of Ordinance. However, the petitioners are also entitled to get the salary as Government servant till 31.4.1992 i.e. so long Ordinance No. 14 of 1990 was valid. As indicated hereinbefore that although, in the counter affidavit the State has clearly come out with the statement that the petitioners of the writ applications hold the same position as existed prior to promulgation of the Ordinance on 18.12.1989 and despite assertion to the effect that directions have been issued to Sanskrit Shiksha Board for payment of salary to all teachers who satisfy the requirements thereof, we have been informed that no salary has yet been paid to the petitioners. The assertions of the petitioners if correct and we have no reason to disbelieve the same keeping in view the conduct of the State of Bihar in general and this case in particular least that can be said is that the action of the State is condemnable. 106. There is absolutely no justification for non- release of the salary of the teachers who had been getting the same, in view of the fact that even according to the State of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force. Even so far as teachers for such schools against whom „Pratikul‟ reports have been submitted would be entitled to salary in the same manner unless schools are derecognized or some other suitable orders in accordance with law are passed. 107. We may reiterate that in terms of the policy decision of the State of Bihar adopted in the year 6 1983 it undertook the financial liability to pay the salary to all the teaching and non-teaching staff who had been working within the sanctioned strength and staffing pattern of the school, unless it is held that salary paid to any of the teachers was illegal as they have been working beyond the sanctioned strength and/or were not entitled to the salary from the State. But others were certainly entitled thereto. We are not aware as to whether staffing pattern of all such schools have been determined by the State or not keeping in view the student-teacher ratio. Probably such action is now necessary. We, however, express no opinion in this regard. We further make it clear that the Ordinance did not envisage enforcement of the reservation policy of the State. In view of our findings aforementioned, these writ applications are allowed to the extent mentioned hereinbefore and the State of Bihar is hereby directed to pay all lawful dues to the petitioners with utmost expedition but not later than two months from the date of receipt of a copy of the judgment if not already paid. It is desirable that the State should see to it that atleast 25% of the salary payable to the eligible teachers be paid forthwith preferably within a period of two weeks from the date of receipt of a copy of this judgment.” 7. It has to be kept in mind that the individual writ petitions of all these three respondents- writ petitioners for payment of salary was also disposed of alongwith Subhash Chandra’s case being C.W.J.C.No. 13305/1992 and C.W.J.C.No. 10785/1992. It is also not 7 in doubt that the State of Bihar has filed an appeal against the common judgment in the case of Subhash Chandra (supra) and the matter is still pending before the Apex Court without any stay of operation of the impugned judgment. On the contrary the Apex Court has passed orders for payment of salary on the old scale on which the payment of salary was being made to them prior to 18.12.1989 as directed by the High Court. 8. Additionally this Court would find that even after lapse of ordinance, the issue with regard to payment of salary for the teachers of recognized Sanskrit Schools was subsequently gone into in the case of Raj Mangal Roy vs. State of Bihar & ors., C.W.J.C.No. 8473/1999, wherein the learned Single Judge while disposing of the writ application by an order dated 2.3.2000 had held as follows: “ A number of persons, including petitioner moved before this Court for payment of salary, which was due to them for certain period. The petitioner preferred C.W.J.C.No. 9625/92 alongwith others. All such cases were heard by a Division Bench, as reported in 1994(2) PLJR 359 (Subhash Chandra & ors. v. State of Bihar). The Court while held that the services of employees taken over by the State by reason a valid law, the concerned employees become 8 Government servant subject to any condition or limitation imposed thereby but what could be conferred by statute can also be taken away by another statute. Since the date of lapse of ordinance the schools including the school in question were treated to have revived to its original position as a recognized private Sanskrit school as was the status prior to the issuance of the ordinance, but the State was directed to pay salary of the intervening period while the school remained taken over under the State. The State of Bihar has preferred Civil Appeal No. 3533-3595/94 against the aforesaid judgment wherein vide interim order dated 26.4.1996, the Supreme Court while clarified the earlier interim order dated 9.1.1995 that the employees shall be paid salary at the rate applicable on December 17, 1989 and shall continue till further orders of the Supreme Court. Learned counsel for the State undertaken that all the respondents would be paid by August/ September, 1996. The said case is still pending before the Supreme Court. In another case of Rabindra Singh v. State of Bihar & ors., 1996(1) PLJR 669, this Court held that the Government cannot deny the petitioner of the said case his right to get salary taking recourse of lapse ordinance and referring to Manak Mandal. 3. The respondent-State and its authorities (nos. 1 to 3) in their counter affidavit while did not choose to deny the fact aforesaid, opposed the prayer on the ground that the additional posts of science teacher were cancelled vide State Government‟s letter no. 966 dated 14.12.1995 and letter no. 1056 dated 21.12.1995. However, none of the aforesaid letters 9 have been enclosed with the counter affidavit. 4. Counsel for the Bihar Sanskrit Shiksha Board while opposed the prayer, produced the copy of letter no. 966 dated 14.12.1995. It was submitted that the State Govt. having cancelled the additional posts of science teacher sanctioned for Sanskrit schools, the petitioner cannot claim salary. 5. From the letter dated 14.12.1995 issued by the Under Secretary, Secondary, Primary and Adult Education, it will be evident that the order was passed giving reference of this Court‟s order dated 9.3.1994 passed in C.W.J.C.No. 7399/90 and the ordinances including Ordinance No. 32/89 as were promulgated. It was mentioned that the State has framed staffing pattern for such Sanskrit Schools; giving reference of aforesaid ordinance it was observed that the ordinance having lapsed, any unit created out of staffing pattern, will be treated to have been cancelled w.e.f. 18.12.1989. It is further informed that in a particular case if no such order of cancellation has been issued, appropriate order be issued and the additional posts of science teacher created be cancelled w.e.f. 18.12.1989. Admittedly, the power to create/ sanction post of an added private Sanskrit school, prior to promulgation of 1989 Ordinance, was vented with the State. The posts were required to be mentioned on the basis of staffing pattern framed by the State from time to time as was framed vide resolution dated 29.6.1989. If a post is created/ sanctioned by the State in terms with staffing pattern, prior to issuance of 1989 ordinance, such posts are not affected on promulgation of 1989 ordinance of take over, nor stand cancelled on its lapse, having no 10 nexus with the same. The staffing pattern as laid down vide resolution dated 29.6.1981 shows the posts which can be created. Under clause 4 to the note below of the said resolution, it has been stipulated that additional post of science teacher can be created if the school is gratned permission to teach science subject. Thereby, if any additional post of science teacher is created in a school granted permission to teach science subject, such post to be treated to be within the staffing pattern in terms with the resolution dated 29.6.1981 and cannot be said beyond the sanctioned strength. 6. In the present case, in terms with resolution dated 29.6.1981 additional post of science teacher was sanctioned by the Education Commissiner, Bihar on 11.12.1982. The service of petitioner was approved against such validly created post on 13.4.1988. It is not the case of respondents that the school in question has not been granted permission to teach science subject or the school does not impart teaching of science to its students. There is no specific order issued cancelling the post created vide order dated 11.12.1982. So far as the letter no. 966 dated 14.12.1995 as reference the State is concerned, the same is not applicable to the posts created prior to take over. Those posts having created independent to 1989 ordinance, cannot be treated to have lapsed or lapse of ordinance, till individual order of cancellation is issued. In the aforesaid background, the respondents cannot withhold the salary of petitioner on the basis of letter mo. 966 dated 14.12.1995 or any other 11 order, on the ground of lapse of Ordinance. This Court in the case of the petitioner (1994(2) PLJR 359) having held the petitioner entitled for arrears of salary, the Supreme Court by interim order having ordered to pay salary to the petitioner and others, the respondents are bound to pay salary to the petitioner to which he was entitled in December 17, 1989 and shall continue to get till further orders.” 9. The said judgment of the learned Single Judge has also been approved in appeal by a Division Bench in L.P.A.No. 715/2000 in which he had held as follows: “2. The stand of the appellants is that the judgment and order of the writ Court under appeal suffers from error of law inasmuch as the writ Court failed to consider that the Ordinance No.32 dated 18.12.1989 by which the State had decided to take over 491 Sanskrit schools including the school in question lapsed on 1.5.1992 and therefore, the liability of the State of Bihar to pay for the teachers of such schools also ceased. It has further been submitted that the learned Single Judge erred in not appreciating that the staffing pattern (Manak Mandal) introduced through Ordinance No.32 dated 18.12.1989 stipulated only 7 teaching staff which did not include a science teacher and therefore no sanction could have been granted to the post of science teacher held by the writ petitioner. 3. We have gone through the judgment and order under appeal carefully and from the statement of facts as well as discussions made therein, 12 particularly paragraphs 5 and 6 we find that the writ court has correctly appreciated the law applicable at the relevant period. The post of science teacher held by the petitioner was sanctioned by the Education Commissioner, Bihar on 11.12.1982 under the staffing pattern laid down vide resolution dated 29.6.1981. Thereafter the service of the petitioner was approved against such validly created post on 13.4.1983. The writ court noticed that it is not the case of the respondents that the school in question did not have permission to teach science subject. It also noticed that there was no specific order to cancel the post created vide letter dated 11.12.1982. Thus, although cognizant of the Ordinance dated 18.12.1989 and its lapse on 1.5.1992, the writ court has found the claim of the petitioner for his salary dues since December, 1995 to be lawful and has allowed such claim. 4. Learned counsel for the appellants has placed reliance upon a Division Bench order dated 13.2.1996 passed in a contempt matter bearing MJC No. 1206 of 1994. The said order has been annexed as Annexure 2 with memo of this Letters patent appeal. Paragraph 6 of the said order also holds that teachers like the writ petitioner will be entitled to the payment of salary and allowances at the old scale to which they were entitled as if ordinances were never passed. The judgment under appeal does not decide the scale in which the writ petitioner should be paid. Hence, there is no conflict between the aforesaid order of the Division Bench and the judgment under appeal. 5. We have been informed by the learned counsel for the appellants that cases of many teachers of 13 taken over Sanskrit schools affected by the lapse of Ordinance of take over on 1.5.1992 are pending in the Apex Court and some interim orders have been passed in those matters directing payment of salary to the affected employees. We have not been taken through those orders but it appears that the writ court has noticed that the State of Bihar has preferred Civil Appeal Nos. 533-3594/94 against relief granted to the teachers of Sanskrit schools by the High Court and vide interim order dated 26.4.1996 the Supreme Court clarified an earlier interim order dated 9.1.1995 to order that the employees shall be paid salary at the rate applicable on 17th December, 1989 i.e. just before the promulgation of Ordinance No.32 dated 18.12.1989 and will continue to get their salary till further orders of the Supreme Court.” 10. In this background when it is found that the case of the petitioner is squarely covered by not only by the earlier Division Bench judgment in Subhash Chandra (supra) but also in the subsequent case of Ran Mangal Roy (supra), there would be nothing left for this Court to take a different view especially when the services of the petitioners were approved both by Kameshwar Singh Darbhanga Sanskrit University as also by the Bihar Sanskrit Shiksha Board with effect from 1.8.1979 and their school has also been specifically recognized and reclassified as Prathmik Sah Madhyamik 14 Sanskrit Vidyalaya vide Govt. order dated 15th September, 1983 with 10 posts of teachers including one Science teacher. The order of the Bihar Sanskrit Shiksha Board dated 25th April, 1995 after classifying of the school by the State Govt. dated 15th September, 1983 recognizing the services of the petitioners and also entitling them for payment of salary would leave for speculation that they are fully entitled for payment of their salary and therefore, the following reasons given by the learned Single Judge in the impugned order for direction of payment of their salary: “The Ordinance of 1989 was challenged in a writ application vide C.W.J.C.No. 7399 of 1990 and analogous cases (Subhash Chandra and ors.). The matter was decided by a Division Bench of this Court and at paragraph 106 of the said judgment, it has been held as follows” There is absolutely no justification for non-release of the salary of the teachers who had been getting the same, in view of the fact that even according to the State of Bihar they were entitled to the payment of salary in the same manner which was being paid to them when the Ordinance 32 of 1989 did not come into force. Even so far as teachers for such schools against whom „Pratikul‟ reports have been submitted would be entitled to salary in the same manner unless schools are derecognized or some other suitable 15 orders in accordance with law are passed. Several contempt applications were filed for implementing the order passed by the Division Bench which were ultimately complied and teachers of approved schools received their salary. Ultimately the State Government filed a S.L.P. in the Supreme Court challenging the judgment of this Court. The Supreme Court while hearing the matter passed an interim order allowing the prayer and directing the State Government to pay to reaching and non-teaching staff of the recognized institution who are within the sanctioned strength their salary at the old rate prior to the promulgation of the Ordinance within two months. The effect of the interim order of the Supreme Court can only be interpreted to mean that those persons who were teaching in recognized Sanskrit Schools prior to the promulgation of 1989 and 1990 Ordinances would be paid their salary at the old rate if their services were previously approved by the State Government and they were within the sanctioned strength. Petitioners have not been paid their salary since 1995 and the reason given by the State Govt. is that they have challenged the judgment of Subhash Chandra‟s case annexed as Annexure 13 in the Supreme Court. True it is that they have challenged the judgment but the Supreme Court has at the same time permitted and directed the State Government to pay salary to the persons working against sanctioned strength and thus the stand taken by the State Government would be in violation of the order of the Supreme Court. It would always be open to the State to seek clarification from the Supreme Court.” 16 does not suffer from any error. The State Government and/or the Board cannot adopt the varying standard one for treating the school as a private recognized Sanskrit school on account of expiry of the period of ordinance and other with regard to sticking to the staffing pattern in those lapsed ordinance for denying the payment of salary to the respondents- writ petitioners. Moreover in view of the inter-party judgment in the case of Subhashs Chandra which has not been stayed by the Apex Court till date and the matter is still before the Constitution Bench of the Apex Court the respondents- writ petitioners are entitled for payment of salary both arrear and current which has been directed to be paid by the learned Single Judge. 11. Thus, for the reasons indicated above, this Court does not find any error in the order of the learned Single Judge. The appeal in fact is devoid of any merit and is, accordingly, dismissed. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 18th March, 2010 N.A.F.R./Surendra 17