IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4349 of 2003 MD.SHAHABUDDIN, son of Md. Amirur Rahman, Village/ PO Pokharaira District Sitamarhi, at present Assistant Teacher Girls High School, Mahanar, District Vaishali … Petitioner Versus 1. THE STATE OF BIHAR through its Secretary cum Commissioner, Secondary Education, Bihar, Patna 2. Direction Secondary Education, Bihar, Patna 3. District Education Officer, Vaishali … Respondents ----------- 4. 5.8.2010 Heard Dr. M.P.Shukla, learned counsel for the petitioner and the counsel for the State. The prayer of the petitioner in this writ application reads as follows: “This is an application for issuance of a writ of certiorari for quashing the letter no. 663 dated 2.4.2003 of the Director Secondary Education Bihar addressed to the District Education Officer, Vaishali rejecting the proposal to review the decision taken with the letter no. 3790 dated 4.9.2000 with which the request for pay protection and consequent benefits was rejected on the basis of the advice of the Finance Department though the Department has allowed such many claims as detailed in paragraph below in paragraph 10 and the matter has been referred to proper department of personnel and 2 Administrative Reforms which has advised to take its own decision based on circular and procedures and such decisions have been taken by the HRS itself. It is further prayed to issue mandamus directing the respondents to grant pay protection and continuation of service as per provisions of law and precedents granting such pay protection and continuation of service.” With regard to the aforementioned prayer Dr. Shukla would submit that admittedly the petitioner was appointed in a minority institution, namely, National High School, Shaikhana, Bihar Sharif between the period 1.9.1980 and remained serving the said institution upto 25.7.1994 before being appointed in a Government High School on the recommendation of Vidyalaya Sewa Board and therefore, the petitioner would be entitled for counting the previous services rendered by him in the minority institution towards the Government service for pay fixation, pay protection and other benefits, such as retirement benefit. Mr. Shukla in this respect would place reliance on the similar 3 orders passed by the Director, Secondary Education, contained in Annexures 14, 14/A and 14/B as with regard to Late M.M.Hasan, Assistant teacher, M.A.U.High School, Khairwa, Md. Jamal Khan, Assistant Teacher, High School, Pesaur (Nalanda) and Smt. Mridu Manjulika Nag, Assistant Teacher, Hindu Uchcha Vidyalaya, Hazaribagh. Counsel for the State with reference to the counter affidavit filed in this case would submit that in view of the fact that the petitioner had sought a fresh appointment in the Government by filing an application to the Vidyalaya Sewa Board and was appointed in terms of the recommendation of the Vidyalaya Sewa Board by way of a fresh appointment, he would not be entitled for counting the previous services rendered in a minority institution. In this respect counsel relies on the decision taken by the Finance Department. In the opinion of this Court the concept of pay protection follows from Rule 78 of the Bihar Service Code. Rule 78 is applicable only in the case of Government servant and an employee working in a 4 minority institution though may be made entitled for payment of salary for grant and aid from the Government and the same pay scale as prescribed for the Government teacher but he does not become a Government servant. The moment this concept becomes clear, it would amount to counting the services rendered in a Non-Government institution towards the Government service. The Government has to pay pension only for the services rendered in a Government service. The earlier pay protection, therefore, could have been given to the petitioner had the petitioner been working as a Government servant in a Government School. The Minority school is not a Government school though it is aided by the Government. So far as precedents relied by the petitioner is concerned they are also clear from their fact inasmuch as in case of Smt. Mridu Manjulika Nag, a decision was taken by the Director, Secondary Education without referring the matter to the Finance Department at the level of the Director, Secondary Education, on 25.2.1991. The case of Md. Jamal Khan decided at the level of 5 District Education Officer, Nalanda on 20.5.1992 again is without reference to the Finance Department and finally the order passed by the Director, Secondary Education on 15.2.2000 in case of late M.M.Hasan is again without reference to the Finance Department. In the case of the petitioner the matter was referred to the Finance Department and the Finance Department has rightly concluded in view of the statutory provisions made in Bihar Service Code that the pay protection or pay fixation for the period of services rendered in a private institution (minority institution) cannot be tagged with the Government service. In that view of the matter, this Court would find that three cases were wrongly decided by subordinate government officers on their own and that will not make the petitioner entitled for the same wrong benefit, inasmuch as Article 14 of the Constitution of India cannot be allowed to be enforced in a negative manner. Reference in this connection may be made in the case of the State of Bihar vs. Upendra Narayan 6 Singh, reported in (2009)5 SCC 65. That being so, this application is wholly misconceived and is accordingly dismissed. (Mihir Kumar Jha,J.) Surendra/