IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5521 of 1993 SUDHANSU SHEKHAR PRAKASH, son of Shri Jagdish Prasad, resident of Moh. Andarkila, P.S. Hajipur, District Vaishali, at present Headmaster of Balika Adarsh Vidyalaya, Gola Bazar, Road, Samastipur … Petitioner Versus 1. THE STATE OF BIHAR through the Secretary cum Commissioner, Department of Human Resources Development, Govt. of Bihar, Patna 2. The Director, Primary Education, Govt. of Bihar, Patna 3. The Regional Deputy Director of Education, Darbhanga 4. The District Superintendent of Education, Samastipur 5. Shri Khawaja Gulam Rasool, son of name not known to the petitioner, presently District Superintendent of Education, Samastipur 6. The District Education Establishment Committee, Samastipur, through its President the District Magistrate, Samastipur … Respondents ----------- 10. 15.7.2010 Heard Mr. Umakant Verma, learned counsel for the petitioner and Mr. Prabhakar Tekriwal, learned counsel for the State. I.A.No. 5936/2010 Mr. Prabhakar Tekriwal, learned counsel for the State, while seeking modification of the order of this Court dated 6.7.2010 as with regard to awarding cost of Rs. 2500/- for not complying the order of this Court in respect of filing the counter affidavit has submitted that the fault does not lie on the part of the concerned Director of Primary Education and 2 in this respect certain defence has been taken as with regard to non-compliance of the order of this Court dated 26.3.2010 by basically explaining such delay on the part of the Law Officer concerned. This Court while passing the order dated 6.7.2010 had not only taken account the earlier order dated 26.3.2010 but it is also kept in mind the order of this Court dated 19.8.1993 wherein a Division Bench of this Court had issued the following directions: “Keeping in view the submissions made at the bar, we direct the Director, Primary Education to ascertain from the records and file a detailed counter affidavit stating therein (i) as to from which date the petitioner was entitled to graduate trained scale keeping in view the relevant Rules and government decisions in this regard (ii) the date from which he was entitled to time bound promotion and (iii) why the petitioner is not being reimbursed of the house rent for the school building as per Annexures „27‟ and „27/1‟. The counter affidavit should be filed within two weeks from today.” 3 It would, thus, be clear that the Director of Primary Education, has violated the order of this Court for a period nearly 17 years and therefore, his explanation with regard to non-compliance of the last order dated 26.3.2010 is neither here nor there. Every authority holding the Government post will have to abide by the constitutional mandate of respecting the Court‟s order. The Court cannot be made a mute spectator to the existing indiscipline prevailing in the corridor of the Secretariat. That being so, the prayer made in this interlocutory application is hereby rejected and the cost of Rs. 2500/- must be deposited by paying it to Mr. Ashim Jha, who was an Advocate on record on the date the order in question was passed on 6.7.2010. C.W.J.C.No. 5521/1993 In this writ application the prayer of the petitioner reads as follows: “A) Issuance of a direction, order or writ in the nature of certiorari setting aside the order contained in Memo No. 5959-61 dated 26.5.93 by which the first time bound promotion of the petitioner w.e.f. 1.7.1988 as Headmaster of Balika 4 Adarsha Mahavidyalaya, Gola Bazar Road, Samastipur (hereinafter referred to as „the School‟) has been cancelled and direction has been given to deposit the amount already drawn in one lot within a period of 15 days. B) Issuance of a direction, order or writ in the nature of mandamus commanding the respondents not to realize the amount already paid to the petitioner as a result of time bound promotion to the petitioner with effect from 1.7.1988. C) Issuance of a proper direction, order or declaration that the first time bound promotion given to the petitioner with effect from 1.7.88 is legal, valid and the cancellation of the same by the respondent no.5 is wholly arbitrary, illegal, malafide and untenable in the eye of law. D) Issuance of a direction order or writ in the nature of mandamus commanding the respondents to apy the arrears of salary to the petitioner in I.A. trained pay scale with effect from 14.9.76 to 30.6.1978 and also pay the graduate trained pay scale w.e.f. 1.7.78 to 8.1.1981. E) Issuance of a direction, order or appropriate declaration that the school shall be deemed to be taken 5 over w.e.f. 1.5.1974, i.e. the date from which the movable and immovable properties were handed over to the District Superintendent of Education, Samastipur. F) Issuance of a direction, order or writ in the nature of mandamus commanding the respondents to pay the rent of the building in which the school is running, which has been fixed @ 200/- per month vide Annexure „27‟ for the period from 1.10.81 to September, 1992, which comes to Rs. 27975/- (as per annexure 28). G) Issuance of a direction, order or writ in the nature of mandamus commanding the respondents to pay the rent of the school building @ 200/- per month for the period from October, 1992 upto date. H) Issuance of a direction, order or proper declaration that the order contained in Annexure 1 has been issued without any prior notice or opportunity to show cause and as such, the same is violative of the principles of natural justice. I) Issuance of a direction, order or appropriate declaration that the order contained in Annexure „I‟ is wholly arbitrary, illegal, malafide and the same cannot be sustained in the eye of law.” 6 Mr. Verma, however, with reference to the aforementioned relief has confined the prayer of the petitioner in respect of only following three: (i) The petitioner should be granted B.A. trained scale of pay with effect from 1.7.1978. (ii) The petitioner should be given time bound promotion by computing length of service from 1.5.1978. (iii) The petitioner should be reimbursed the payment made by him towards the rent of the school in terms of the direction of the District Superintendent of Education. As with regard to the first prayer, from the materials on record it is clear that the school was taken over by a Government order dated 9.1.1981 wherein the date of enforcement was to be made effective from the date of handing over of movable and immovable assets of the school by the Managing Committee to the District Superintendent of Education. Mr. Verma in that context has invited attention of this Court towards a Government letter dated 25th January, 1984 (Annexure 14) wherein on the basis of the same letter of the District 7 Superintendent of Education, Samastipur (D.S.E.,Samastipur) dated 4.5.1974 it was sought to be concluded that the date of handing over of the movable and immovable assets of the school was 1.5.1974 and therefore, the date of taking over of the school would be deemed to be 1.5.1974. Mr. Verma in fact proceeds on assumption that once the school was deemed to have been taken over from 1.5.1974, the appointment of the petitioner in B.A. trained scale of pay by the Managing Committee on 1.7.1978 will give him the status of the Headmaster of taking over school and thus, entitled to B.A. trained scale of pay by the Managing Committee. There will be difficulty both on fact and in law to accept such submission. Section 3 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (Bihar Act 30 of 1976) envisaged taking over of the non-Government elementary school by the State Government and there is no doubt that the school of the petitioner was taken over in terms of section 3(4) as is clearly mentioned in the order of the 8 Special Secretary of the Education Department dated 9.1.1981. Section 3, therefore, needs to be quoted hereinbelow: “3. Taking over of non-Government Elementary Schools by State Government.-(1) Elementary schools managed by the District Board, Zila Parishad, the Municipal Board, and the Patna Municipal Corporation, and those opened under the Expansion and Improvement scheme shall be deemed to have been taken over by the State Government with effect from the 1st day of January, 1971. (2) Aided elementary schools, the Managing Committees of which have handed over voluntarily the control of the school to the Government, shall be taken over by the State Government with effect from the date which shall be determined by the District Committee referred to in sub-section (4) for this purpose. (3) Elementary schools administered by any public or private undertakings shall be taken over by the State Government by publication of a notification in the official gazette with effect from the date to be specified therein. (4) (a) with regard to the taking over of Elementary schools other 9 than those mentioned in sub-section (1) and (3) there shall be a District Committee in each District which shall examine the feasibility of taking over of such schools by the State Government and which shall consist of the following member: (i) Deputy Development Commissioner/ Administrator, District Board- Chairman. (ii) District Superintendent of Education- Secretary. Members (iii) District Education Officer (iv) District Inspector of Schools (v) Subdivisional Education Officer of the concerned subdivision, and (vi) Deputy Inspector of Schools concerned. (b) The State Government may, from time to time make changes in the personnel of the District Committee so constituted.” From a bare reading of Section 3 of the Act it would become clear that there would be different type of elementary schools whose take over was contemplated under the Act. Admittedly the school of the petitioner did not fall within the category of section 3(1) and section 3(3) and therefore, once the school was taken over in 10 terms of section 3(4) of the Act there has to be a recommendation of the District Committee with members named therein but there is nothing on record to show that either after 9.1.1981 or even upto 25.1.1984 when the Deputy Secretary had issued an order giving retrospective date of take over of the school with effect from 1.5.1974 there was any such recommendation of the District Committee. Thus, if there is no such Government decision with regard to date of take over, the date which can at best be given to the take over of the school, can be no other date except the date on which the clarificatory order was issued i.e. 25.1.1984. In this context it is important to note that the school on 9.1.1981 could not have become a Government school because something was yet to be done by way of handing over of the charge. There was no recommendation of the District Committee in terms of section 3(4) giving the date of take over as 9.1.1981 or any other date and therefore, if the Government ultimately made a declaration on 25.1.1984 with regard to handing and taking over of the assets, that 11 at best can be the date on which the school will be deemed to have been taken over. There is yet another difficulty for this Court to accept the date of take over of the school as 1.5.1974. If such date is accepted the appointment of the petitioner will be void, inasmuch as if the District Superintendent of Education had already taken over the assets and liabilities of the school on 1.5.1974 as is sought to be projected by his letter No. 1067 dated 4.5.1974 referred to in the Government letter dated 25.1.1984 then there was no question of the petitioner being appointed under the order of the Secretary of the Managing Committee because by that time he had become functus officio and the appointment of the petitioner on 1.7.1978 by Managing Committee will itself pose a big question mark. Not that the petitioner‟s appointment on 1.5.1978 will not have a question mark, inasmuch as from today‟s affidavit it appears that the petitioner‟s age as on date is 52 years and therefore, if the petitioner in the year 1978 i.e. some 32 years back was appointed having a 12 qualification of B.Sc. trained, that would mean that the petitioner at best became a matriculate at least at the age of 12-13 years. It is also a matter of great wonder as to how the person directly without any experience could have been appointed in a school which had already been taken over by the Government in the year 1974. All these facts would bring the claim of his initial appointment in a zone of suspicion but then this Court would not like to go into these aspects for a simple reason that the Government at any point of time had not intended to take over the services of the petitioner in B.A. trained scale of pay. That could be evident from the order of the take over dated 9.1.1981 which is quoted hereinbelow: i=kad ,l Ao 3& 298A79 f'k0 135A fcgkj ljdkj f'k{kk foHkkxA izs"kd& Jh ujsUnziky flag ljdkj ds fo'ks"k lfpoA lsok esa & ftyk f'k{kk v/kh{kd] leLrhiqjA iVuk] fnukad 9 tuojh 81A fo"k;& ckfydk vkn'kZ e/; fo|ky;] xksyk cktkj] leLrhiqj dkjk jktdh;dj.kA egk'k;] mi;qZDr fo"k; ij vkids i=kad 638 fnukad 2-8-80 ds izlax esa fcgkj xSj ljdkjh izkjafHkd fo|ky; ¼fu;a=.k & xzg.k½ vf/kfu;e 1976 dh /kkjk 3¼4½ esa fufgr izko/kku ds vUrxZr ljdkj ds vkns'kkuqlkj ckfydk vkn'kZ e/; fo|ky;] xksyk cktkj] leLrhiqj dk vf/kxzg.k fuEukafdr f'k{kdksa ds lkFk muds uke ds lkeus vafdr osru ij fd;k tkrk gS%& f'k{kd dk uke osru --------------------- -------------------------------------------------------------------------------- 1- Jherh ykfyek dqekjh eSfVzd izf'kf{kr dh osrueku 13 2- Jherh xk;=h dqwekjh eSfVzd vizf'kf{kr dk fu;r osru 205@& :0 izfrekgA 3- eks0 o'khj valkjh ** 4- vkseizdk'k eSfVzd izf'kf{kr dk osrueku 5- Jh lq/kka'kq 'ks[kj izdk'k ** ** ** 6- Jherh 'kkfUr nsoh ** ** ** 7- Jh vkse izdk'k flUgk eSfVzd vizf'kf{kr dk fu;r osrueku 205@& :0 izfrekgA 8- Jherh 'kksHkk dqekjh eSfVzd vizf'kf{kr dk fu;r osrueku 205@& :0 izfrekgA 9- Jherh m"kk dqekjh ** ** ** 10- Jherh t;Jh okyk ** ** ** 11- Jh jatu dqekj flUgk ** ** ** 2& vizf'kf{kr f'k{kdksa dks foHkkxh; vkns'k la[;k 1167] fnukad -5-80 ds vkyksd esa izf'k{k.k dh O;oLFkk dh tk;A 3& fo|ky; ds iz/kkuk/;kid vkSj izFke lgk;d f'k{kd dk inLFkkiu ftys dh ojh;rk lwph ls fu;ekuqlkj fd;k tk;xkA 4& ;g vkns'k fo|ky; izcU/k lfefr }kjk py vpy lEifr ftyk f'k{kk v/kh{kd dks lqiqnZ djus dh frfFk ls gh izHkkoh ekuk tk;xkA fo'oklHkktu] g0@& ujsUnz 9-1-81 ¼ujsUnziky flag½ ljdkj ds fo'ks"k lfpoA Kkikad 57&91 leLrhiqj] fnukad 9-1-82 izfrfyfi fo|ky; mifujh{kd fo|ky; mi fujhf{kdk] leLrhiqj dks bl dk;kZy; ds Kkikad 47&56 fnukad 6-1-82 ds dze esa rn~uqlkj vko';d dkjZokbZ gsrq izsf"krA g0@& lhrkjke d.kZ ftyk f'k{kk v/kh{kd] leLrhiqj Kkikad 57&91 leLrhiqj] fnukad 9-1-82 izfrfyfi lfpo Jh lq/kka'kq 'ks[kj izdk'k] iz/kkuk/;kid] jktdh;d`r ckfydk vkn'kZ e/; fo|ky;] xksyk cktkj jksM] leLrhiqj rFkk foi= fyfid] leLrhiqj dks lwpukFkZ ,oa vko';d dk;kFkZ izsf"krA ¼lhrkjke d.kZ½ ftyk f'k{kk v/kh{kd] leLrhiqjA From the reading of the aforementioned order of take over it would be clear that the services of the petitioner were taken over only in matric trained scale of pay despite the petitioner‟s claim of being appointed in the B.A. trained scale of pay. This was perfectly possible in terms of section 4 of the Act which reads as follows: “4. Consequences of taking over.- 14 (1) All the assets and properties whether movable or immovable owned or possessed by the schools taken over by the State Government under section 3 including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officer, teacher or other employees holding any office or posts in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. 3. The service of employees of local bodies working on deputation in the office of the District Superintendent of Education, Subdivisional Education officer cum 15 Municipal Education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this Act.” Thus, each and every right of the petitioner got crystallized in view of the order of take over only as a matric trained teacher and the petitioner could not have in fact opened his mouth for more than that and in that view of the matter he cannot claim B.A. trained scale from 1978 by taking a plea that the school was taken over in the year 1974 inasmuch a in that case his appointment itself could be rendered as void. In the opinion of this Court if the petitioner had acquiesced his right of claiming B.A. trained scale of pay despite being made aware of the Government notification dated 25.1.1984 for a period of 12 years before filing of this writ application in 1996, he cannot be allowed to 16 raise such a stale claim in this writ petition. This Court, therefore, would hold that the petitioner would be entitled for his B.A. trained scale of pay only from the date on which any of the juniors to him in the cadre of teachers of Primary School in the district of Samastipur may have been given such B.A. trained scale of pay. The petitioner will be deemed to have been absorbed in the Government school only in the matric trained scale of pay and thereafter his right of earning promotion in B.A. trained scale as per Government rules will be given effect to with others in normal channel. Counsel for the petitioner in this context has however drawn attention to the order dated 24th January, 1984 showing grant of B.A. trained scale of pay to him by the Establishment Committee with effect from 9.1.1981. This Court would find it difficult to accept the correctness of this order dated 24th January, 1984 because the Government letter clarifying the date of take over of the school was issued only on 17 25th January, 1984 and therefore, if there was no decision even with regard to effective date of take over of the school how could the petitioner‟s case be considered for grant of B.A. trained scale with effect from 24.1.1984. Admittedly everything is not well in Education Department where any order of field officers can be procured from any corner and every corner. This Court, therefore, would direct the Director of Primary Education to consider the whole service span of the petitioner for finding out as to on which date the petitioner would be entitled for grant of B.A. trained scale of pay which must not be any date earlier to his immediate junior in the cadre of teachers of the district. The next grievance of the petitioner with regard to grant of time bound promotion by taking into account his service for the period from 1.7.1978, in view of the finding recorded above that the school will be deemed to have been taken over only with effect from 25.1.1984 and no 18 other earlier date, has to be automatically rejected. In any event the time bound promotion to the petitioner if claimed on the basis of 1978 circular would be automatically ruled out because the services of the petitioner were taken over in the matric trained scale of pay on 9.1.1981 and thereafter the D.S.E., Samastipur could not have given him the B.A. trained scale of pay on 24.1.1984 and therefore, if he had already got promotion with pay fixation benefit, that was only by way of removal of stagnation to a person who had not been given promotion. Therefore, this Court would also not put any final word on this aspect but leave the matter open for the Director, Primary Education to decide the effective date of claim of time bound promotion of the petitioner. The last grievance with regard to reimbursement of rent of the building in question in which the school was being run for the period November, 1982 to October, 1983 needs this much of enquiry as to whether the petitioner had actually paid such rent. It is true that there is a letter 19 of the District Superintendent of Education dated 11.1.1984 fixing rent of Rs. 200/- for the school in question with effect from 1.4.1981 and another letter dated 30.7.1986 addressed to the petitioner directing him to make arrangement for payment of monthly rent of the school but then the crucial question would be as to whether such rent was actually paid by the petitioner. The reliance placed by the petitioner on the letter of the D.S.E. dated 1.3.1997 would only go to show that rent payable in the school in question to the tune of Rs. 26,400 but who had paid such rent has not been clarified at least in the said order and the reference in this connection has to be made to the order of the D.S.E. in Annexure 27/1 dated 30.7.1986. Therefore, the Director, Primary Education, will also look into this aspect and if he would find actual proof of rent by the petitioner, the payment of amount on this head will also be directed to be made to the petitioner within a period of three months from the date of receipt of such order passed by the Director, Primary Education. 20 Having answered all these three issues raised by the petitioner this Court must record that the respondents have taken a stand that the petitioner is absconding and is not on duty from the year 2001. If that be so, the Director, Primary Education, will also take appropriate disciplinary action against the petitioner for his unauthorized absence from duty. In order to expedite the matter this Court would give liberty to the petitioner to file a self contained representation with regard to the aforementioned three grievance enclosing all the relevant documents and the Director, Primary Education, on receipt of the said representation alongwith a copy of this order would pass his final order within a period of six months. With the aforementioned observations and directions, this application is disposed of. There would be, however, no order as to costs. (Mihir Kumar Jha,J.) Surendra/